United States v. Jose D.L. (Juvenile) , 453 F.3d 1115 ( 2006 )

PREGERSON, Circuit Judge.

Defendant Jose A. appeals the district court’s finding that he is a juvenile delinquent under 18 U.S.C. § 5032. On May 10, 2005, fifteen-year-old Jose was arrested after government agents found cocaine hidden in the vehicle he was driving from Mexico into the United States. Because Jose was a minor, the provisions of the Juvenile Delinquency Act, (“JDA”) 18 U.S.C. § 5031 et seq. apply. We have jurisdiction under 28 U.S.C. § 1291. We reverse in part and remand for further proceedings.

I. Factual Background

A. Arrest and Detention

On May 10, 2005, at approximately 4:15 p.m., fifteen-year-old Jose attempted to cross the United States — Mexico border at the San Ysidro, California, Port of Entry. Jose was driving a gray Toyota 4-Runner with a Mexican license plate. When Border Patrol Officer Mark Hill questioned him, Jose stated that the vehicle was his, then changed his answer to say that it belonged to his uncle. Officer Hill asked Jose about the purpose of his visit to the United States, to which Jose responded that he intended to go shopping for his mother.

Officer Hill conducted a preliminary search of the vehicle, tapping the driver’s rear quarter panel. According to Officer Hill, the panel seemed “solid,” so he tapped the vehicle’s other quarter panel and then opened the passenger door and searched the inside of the quarter panel. That search uncovered several packages wrapped in electrical tape.

After Officer Hill found the packages in the vehicle’s quarter panels, he placed Jose in handcuffs. Officer Hill then patted Jose down, and escorted Jose to a security office. The 4-Runner was taken for a secondary inspection, where agents found that the vehicle contained twenty-five packages that contained 29.68 kilograms (or 65 .43 pounds) of cocaine.

Approximately one hour after agents stopped Jose at the border, United States Immigration and Customs Enforcement (“ICE”) Agent Eveleen Cabrera questioned Jose. When Agent Cabrera asked Jose if he knew why he was being detained, Jose replied that the agents had told him that he was being detained because they found drugs in the car he brought across the border. Agent Cabrera informed Jose that the agents needed to contact his parents, because he was a minor. Jose responded that his family did not have a telephone, but he gave Agent Cabrera the telephone number of relatives who lived next door to Jose’s family in Mexico. At no time did Agent Cabrera advise Jose of his Miranda rights.

Agent Cabrera called the number provided by Jose, and reached his aunt, Maria Del Rosario Llanes-Angulo. Agent Cabrera told Llanes-Angulo that Jose had been detained at the border and that he had been caught trying to smuggle drugs into the United States. She asked if Llanes-Angulo could contact Jose’s parents. Llanes-Angulo told Agent Cabrera that Jose’s mother was at work and that she did not have access to a phone at her workplace. Llanes-Angulo offered to physically locate Jose’s mother. She also said that she did not have a telephone number for Jose’s father, who was separated from Jose’s mother, but offered to try to track him down as well. She later testified that Jose’s father lived about fifteen minutes from her house. Agent Cabrera did not give Llanes-Angulo a callback number to the Port of Entry that might have permitted Jose’s parents to reach the agents by phone.

Agent Cabrera asked Llanes-Angulo if she could come to the Port of Entry, to which Llanes-Angulo responded that it would take her an hour and a half to do so.¹ Agent Cabrera also asked Llanes-Angulo if the agents could question Jose and Llanes-Angulo assented.² Nonetheless, Agent Cabrera did not inform Llanes-Angulo of Jose’s constitutional rights and did not permit Jose to speak to his aunt.

Approximately nine minutes after Agent Cabrera attempted to contact Jose’s parents, Special Agent Moisés Martinez first notified Jose of his Miranda rights. Agent Martinez gave Jose the Miranda warning in Spanish using an ICE Advice of Rights form, which Martinez had Jose read aloud. Jose indicated that he understood each right by signing a statement to that effect. Jose was also informed that, because he was not a United States citizen, he had a right to have the officers notify the Mexican consulate of his arrest and detention. Jose orally waived this right and signed a waiver of the right to consular notification.

After Jose waived his Miranda and consular notification rights, Agents Martinez and Edward Zuchelli questioned Jose. According to the agents, they did not wait for Jose’s parents to arrive because Jose was a minor and they knew they needed to act quickly in the case of a minor’s arrest, and because Jose had been caught with a large quantity of cocaine. The interview lasted thirty to forty-five minutes.

Approximately forty-five minutes after the agents finished interrogating Jose, Agent Zuchelli — at the urging of the United States Attorney — notified the Mexican consulate of Jose’s arrest and detention. At about this same time, Jose’s father arrived at the Port of Entry. The agents informed Jose’s father of the charges against his son, and gave Jose’s father a brief opportunity to speak with Jose. They also informed him that Jose was going to be held at the San Diego Juvenile Hall facility. Nothing in the record indicates that the agents informed Jose’s father of his son’s Miranda rights.

B. Arraignment

Jose was transported to Juvenile Hall at 9:30 p.m. on May 10, 2005. The following morning at 8:00 a.m., Jose was taken to the courthouse in San Diego and turned over to the United States Marshal Service. The assigned magistrate began arraignments at 10:30 a.m. The Federal Defender, Michelle Villasenor-Grant, met with Jose at 12:55 p.m. Although the magistrate’s afternoon session began at 2:00 p.m., Jose was not brought before the magistrate for arraignment until 3:30 p.m., after all the adults had been arraigned for the day and nearly twenty-four hours after his arrest.

At the arraignment, the government filed a juvenile information charging Jose with being a juvenile delinquent for one count of importation of a controlled substance in violation of 21 U.S.C. §§ 952 and 960. Jose moved to dismiss the information on the ground that his arrest and detention violated the JDA. The court dismissed the motion without prejudice.

C. Pre-Trial Motions

On May 23, 2003, Jose filed two motions to dismiss the information based on violations of the JDA. In these motions, Jose argued that the information was deficiently certified by the Attorney General, and that the government did not present Jose to a magistrate for arraignment “forthwith.” After argument, the court denied both motions.

In two additional pretrial motions, Jose moved to suppress his custodial statements on the following grounds: (1) that the arresting officers failed to advise his parents of the charges against him or of his constitutional rights as required by the JDA, and that this deprived him of the right to counsel and the protection of his parents; (2) that the officers failed to notify the Mexican consulate of Jose’s arrest and detention as required by the JDA; (3) that Jose did not voluntarily, knowingly, or intelligently waive his Miranda rights; and (4) that Jose was not taken to a magistrate forthwith in violation of the JDA.

On June 1, 2005, the court considered Jose’s pre-trial motion to suppress his statements. The court concluded that Jose had voluntarily waived his Miranda rights, but that the government violated the JDA’s notification provisions by failing to notify Jose’s parents before questioning him. This “technical violation,” the court concluded, did not violate Jose’s right to due process. Id. The court found, however, that the statements were prejudicial, and therefore excluded Jose’s statements from the government’s case-in-chief.

D. Trial, Conviction, and Sentencing

After a brief bench trial, the district court adjudged Jose a juvenile delinquent on June 2, 2005. Sentencing was set for July 11, 2005.

A Presentence Report (“PSR”) was filed on June 17, 2005. According to the PSR, Jose did well in school, never used drugs, and worked on occasion for his father. He had no prior criminal or juvenile convictions. Jose told the probation officer that, while he knew he was involved in some illegal activity, he believed that he was picking up illegal visas in San Ysidro. He stressed that he did not know that the 4-Runner contained illegal drugs, and expressed remorse for getting involved in illegal activity. The PSR concluded that a custodial sentence was not needed to protect the community or to promote a respect for the law. Instead, the Probation Office believed that Jose was “capable of rehabilitation without a custodial sanction,” and recommended that Jose be sentenced to five years probation. Id. The Probation Office assured the court that such a sentence “[would] not diminish the seriousness of the offense. The juvenile understands the seriousness of his actions and has learned from this experience.” Id.

Despite the PSR’s recommendation, the court sentenced Jose to serve an additional ten months custody in a juvenile detention facility. Given the substantial quantity of drugs involved, the court found that probation was not a deterrent and that the rehabilitative aims of the JDA would best be served by imposing ten months of detention.

Jose filed a timely notice of appeal.

II. Discussion

We review compliance with the JDA, a question of statutory interpretation, de novo. See United States v. Male Juvenile (Pierre Y.), 280 F.3d 1008, 1014 (9th Cir.2002). We also review de novo “whether the juvenile [was] advised of his rights ‘immediately’ or whether the juvenile’s parents were notified ‘immediately’ ” because such questions “turn on the legal interpretation of ‘immediate.’ ” United States v. Doe (Doe III), 219 F.3d 1009, 1014 (9th Cir.2000) (citing United States v. Frega, 179 F.3d 793, 802 n. 6 (9th Cir. 1999)). Whether a juvenile’s parents have been properly notified pursuant to 18 U.S.C. § 5033 is a predominately factual question that is reviewed for clear error. See United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir.2000). Whether a juvenile has been arraigned without unreasonable delay is a mixed question of law and fact reviewed de novo. See Doe III, 219 F.3d at 1014.

Section 5033 of the Juvenile Delinquency Act (“JDA”) provides:

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 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.

18 U.S.C. § 5033. In reviewing Jose’s claim, the panel must first “address whether the government violated the requirements of the Juvenile Delinquency Act.” United States v. Doe (Doe II), 862 F.2d 776, 779 (9th Cir.1988). If the government violated the JDA, then the panel should consider “whether the government’s conduct was so egregious as to deprive [Jose] of his right to due process of law.” Id. If it was not, the panel then considers whether “the violation [was] harmless to the juvenile beyond a reasonable doubt.” Id.

A. Was the JDA violated?

Jose contends that the Border Patrol agents and officers failed to comply with the JDA because (1) the agents did not immediately advise him of his constitutional rights; (2) the arresting officer improperly delegated the duty to notify Jose’s parents of his arrest, detention, and constitutional rights; (3) the agents did not immediately notify Jose’s parents that he was in custody and never advised Jose’s parents of Jose’s constitutional rights; (4) the agents did not notify the Mexican consulate before Jose was interrogated; and (5) the government did not present him before a magistrate “forthwith.” The government bears the burden of showing compliance with the JDA. See id. at 779.

1. Was Jose immediately advised of his rights?

Jose was considered “in custody” from the moment Officer Hill handcuffed him at approximately 4:15 p.m. See RRA-A, 229 F.3d at 744 (finding juvenile “in custody” from the moment he was handcuffed). Jose was not informed of his Miranda rights until 5:24 p.m, when Agent Martinez began to interrogate him. In this appeal, Jose argues that the arresting officers violated the JDA because he was not immediately notified of his Miranda rights.

“[T]here is a dearth of case law interpreting ‘immediately’ in the context of 18 U.S.C. § 5033.” Doe III, 219 F.3d at 1014. In Doe III, this court found that a delay of three and a half hours was untimely because the plain meaning of the term “immediately” does not countenance a three and a half hour delay, and because there was no showing “that exigent circumstances or other valid reasons caused the delay.” Id. In another juvenile case, RRA-A, we found that a delay of four hours was not “immediate.” RRA-A 229 F.3d at 744.

The delay at issue here is less'than the delay in either of our previous eases on this question. And yet the notification here was certainly not “immediate.” Officer Hill did not advise Jose of his rights when Jose stood handcuffed at the border or when Jose was transported to the security office. Agent Cabrera did not advise Jose of his rights before she asked Jose why he thought he was in custody or before she solicited contact information. It appears that both agents spoke Spanish, and there was no valid reason presented why either of these two agents could not have informed Jose that he did not have to speak to the agents, or that he would be permitted the aid of counsel. Legal warnings need not be given instantaneously, especially where “exigent circumstances or other valid reasons” cause a short period of delay. Doe II, 219 F.3d at 1014. But it stretches the language of the statute too far to say that “immediately” means “just before you wish to seek a confession.” Miranda itself provides the right to receive such warnings before being interrogated, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and to find otherwise would render the JDA’s protection for juveniles superfluous. We believe that Congress intended juveniles to be advised of their Miranda rights as soon as practicable after the juvenile was “in custody.”

Under this rubric, Jose was not advised of his Miranda rights “immediately.” At the very least, Agent Cabrera should have read Jose his rights before she asked Jose if he knew why he was being detained, and before she began the other tasks assigned to her by the JDA. See RRA-A 229 F.3d at 746 (noting that arresting officer should read the juvenile his Miranda rights but delay interrogation of the juvenile until the consulate can be notified). Accordingly, we find that the government violated the JDA by failing to “immediately” notify Jose of his legal rights.

2. Did the arresting officer improperly delegate the notification of duties?

Jose contends that the Border Patrol agents violated the JDA when Agent Hill, as the arresting officer, “delegated” the notification duty to Agents Cabrera and Zuchelli. In support of this argument, Jose cites RRA-A in which we found a JDA violation where the arresting officer delegated the notification requirement to the United States Attorney’s Office. RRA-A 229 F.3d at 745. We find that Agent Hill did not improperly delegate the notification duty.

In RRA-A, the officer delegated the task of parental notification to the prosecutor, who subsequently delegated the task to the prosecutor’s secretary. See id. at 745. We concluded that delegation to a prosecutor strayed too far from the textual strictures of the JDA, which requires that the “arresting officer” notify the parents. See id. at 744-45; see also United States v. Doe (Doe IV), 170 F.3d 1162, 1167 (9th Cir.1999) (finding that the text of the JDA does not allow for delegation to a “subsequent official who might handle the judicial phases of the matter”).

Nonetheless, it seems an overly narrow reading of “arresting officer” to exclude fellow officers and agents involved in the actual arrest and investigation at the scene of the arrest. In this case, Agent Hill was working at the border and conducted the initial investigation, after which he walked Jose back to the office so that a fellow agent could conduct initial processing. We believe that the purpose of the JDA was not thwarted by allowing an intake officer on the scene of the arrest to call the juvenile’s parents instead of the officer who made the initial arrest. Accordingly, we conclude that Agent Hill did not improperly delegate his notification duties in violation of the JDA.

S. Were Jose’s parents immediately notified that he was in custody and notified of his rights?

Section 5033 requires that federal law enforcement agents notify parents of a juvenile’s arrest “immediately” after the juvenile is taken into custody. See United States v. Female Juvenile (Wendy G.), 255 F.3d 761, 765 (9th Cir.2001). In addition, a juvenile’s parents must also be notified of the minor’s Miranda rights, “to ensure that § 5033 provides juveniles with ‘meaningful protection.’ ” RRA-A, 229 F.3d 745. Because this protection is useless unless the parent has the right to consult with the juvenile before interrogation, the arresting officer must affirmatively inform the parents that they will have the opportunity to confer with and to advise their child before the child is interrogated. See Wendy G., 255 F.3d at 767. If notification is not immediately possible, the officers must delay interrogation for a reasonable time to allow parental notification and response. See RRA-A, 229 F.3d at 746. These steps ensure that a juvenile in custody receives “the aid of more mature judgment as to the steps he should take in [his] predicament,” that is, an adult who can provide the juvenile “the protection which his own immaturity could not.” United States v. Male Juvenile, 121 F.3d 34, 43 (2d Cir.1997) (quoting Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962)).

When the juvenile’s parents live outside the United States, the government must make “reasonable” efforts to contact the parents so that the juvenile can receive such protection. See Doe II, 862 F.2d at 779. “These reasonable efforts may consist of either (a) actual notification or (b) sufficient inquiry or effort to make the reasonable determination that actual notification is not feasible” Id. Only if actual notification is not feasible may the government notify a foreign consulate in this country in lieu of parental notification. See id. Consular notification facilitates parental notification, allowing an “in-country mechanism” to assist the government in locating the parent. RRA-A, 229 F.3d at 746. It also allows a country’s diplomatic officers to become involved as surrogates for the parents. See id.

The government contends that it made “every effort” to comply with these notification provisions. We disagree. Government agents notified Llanes-Angulo that Jose had been detained at the border, but that was the extent of their compliance with the JDA. Llanes-Angulo offered the agents a number of options, any of which probably would have complied with the JDA: The agents could have asked Llanes-Angulo to locate the mother or father and could have left a callback number so either parent could call and talk to their son. The agents could have clarified whether Llanes-Angulo intended to come to the border, and could have waited an hour and a half to allow Llanes-Angulo to travel to the border and to consult with her nephew.³ The agents also could have informed Llanes-Angulo that Jose had been caught at the border with cocaine, informed her of Jose’s Miranda rights, and offered her an opportunity to talk with her nephew.⁴ Arguably, any of these options would have fulfilled the JDA’s requirement that a parent, or person who could reasonably be deemed to act in loco parenti, be notified of the juvenile’s situation, be informed of the juvenile’s Miranda rights, and be affirmatively offered the opportunity to consult with the juvenile. Instead, agents waited nine minutes — hardly a “reasonable time” to allow parental notification — and then began interrogating Jose.⁵ We believe the government spurned obvious alternatives that would have permitted Jose to consult with his mother or father, or at least with his aunt. As such, the government has not borne its burden to show that actual parental notification was not feasible. We therefore find a violation of the JDA.

The government claims that this failure to notify Jose’s parents was somehow remedied by the fact that Jose waived his right to consular notification. Given that the government has not shown that parental notification was not feasible, consular notification is irrelevant. Consular notification is undertaken in lieu of parental notification, but it can never fully supplant parental notification. Consular notification should not be used simply because parental notification is inconvenient.⁶

Ip. Was Jose taken to a magistrate forthwith?

Jose next contends that the twenty-three hour delay between his arrest and his arraignment violates the JDA’s requirement that a juvenile be presented to a magistrate “forthwith.” As stated above, Jose was taken into custody at approximately 4:15 p.m. on May 10, 2005. He was interrogated from approximately 5:24 p.m. to 6:10 p.m. He was then transported to Juvenile Hall at 9:30 p.m. The following morning, at 8:00 a.m., Jose was taken to the courthouse in San Diego and turned over to the United States Marshal Service. Michelle Villasenor-Grant, the Federal Defender and the assigned “duty attorney” on May 11, was present at the courthouse from 9:00 a.m. The assigned magistrate began arraignments at 10:30 a.m. When Villasenor-Grant overheard the Assistant United States Attorney speaking about a juvenile who had been detained, Villasenor-Grant took affirmative steps to find Jose. She met with Jose at 12:55 p.m., and was ready to proceed at 1:10 p.m. The magistrate’s afternoon session began at 2:00 p.m., and still, Jose was not arraigned. At 3:30 p.m., after the entire adult calendar was finished, Jose was finally brought before the magistrate for arraignment— nearly twenty-four hours after his arrest.

The government admits, as it must, that the delay was caused by its own processing. The magistrate began arraignments at 10:30 a.m. The public defender was present all day and could have met with Jose that morning if she had been informed that Jose was in custody. Thus, the government proffered only three reasons why Jose could not be arraigned in the morning: because of the large quantity of the drugs found in Jose’s vehicle, because the paperwork involved in preparing the information was “tedious,” and “because this case was urgent requiring a thorough, cautious approach.”

We have held that, in general, juveniles in custody should be given priority in the arraignment schedule. See United States v. Doe I, 701 F.2d 819, 824 (9th Cir.1983). In Doe I, we upheld a thirty-six hour delay where the magistrate was unavailable and where agents had to give priority to other cases, including the arraignment of a pregnant woman and women with small children. See id. We held that “only because of these exigencies” was the delay in arraignment permissible. Id. (emphasis added); see also Doe III, 219 F.3d at 1015 (finding that thirty-one and a half hours is not “forthwith”). In contrast to the specific reasons offered for delay in Doe I, here we have only the government’s assertion that they were proceeding “with caution” and that the paperwork process was “tedious.” We refuse to accept the government’s bald assertion that caution was required to justify detaining Jose in the holding cell for almost seven and a half hours after he arrived at court.

The Government also argues that Jose’s waiver of his Miranda rights necessarily permits a delay for the time of interrogation, relying on United States v. Indian Boy X, 565 F.2d 585 (9th Cir.1977). Even if we were to permit a reasonable period of delay for purposes of interrogation, it would not excuse the additional twenty-one hour delay after interrogation was completed before Jose was presented to the magistrate.

Rather than being treated with priority, Jose was arraigned after the magistrate judge had finished his entire calendar of adult arraignments. We find no reasonable cause for the twenty-three hour delay in proceedings before a magistrate, and therefore that the government violated the JDA when it failed to present Jose to a magistrate forthwith.

B. Due Process Violation

Because we find that government officials committed multiple violations of the JDA, we must consider whether these violations were “so egregious as to deprive [the juvenile] of his rights to due process.” Doe II, 862 F.2d at 779. We conclude that, under our case law, those multiple violations of the JDA did not amount to a violation of due process. The delay in reading Jose his Miranda rights did not effect a violation of due process, because Jose was read his rights before interrogation, and thus the “primary purpose” of Miranda — to protect against self-incrimination — was secured. See RRA-A, 229 F.3d at 746. This court has also held that the failure to properly notify a juvenile’s parents or the failure to notify a foreign minor’s consulate does not, in and of itself, require suppression of the juvenile’s statement on due process grounds. See RRA-A, 229 F.3d at 746; Doe IV, 170 F.3d at 1168.

Similarly, this court has found that delay in bringing a juvenile before a magistrate does not violate due process where the government made no attempt to interrogate the juvenile during the delay and where there was no evidence that the delay was a deliberate attempt to gain undue advantage or influence the juvenile. See Doe III, 219 F.3d at 1016. In this case, although the delay was significant, there is no evidence that the government tried to use the delay to its advantage or that the delay was undertaken in bad faith. Thus, we find, as did the district court, that the delay in bringing Jose before the magistrate for arraignment did not, in the circumstances presented, affect the fundamental fairness of the proceeding.

C. Harmless Error

While “[t]he [JDA] was enacted to protect juveniles’ due process rights, [it] is not coextensive with constitutional guarantees.” Doe II, 862 F.2d at 781. Thus, even if the government’s violations of the JDA did not violate Jose’s right to due process, we must next consider whether Jose was prejudiced by the JDA violations and whether the court should exercise its discretion and dismiss the information to “ensure that the ‘prophylactic safeguard for juveniles [is not] eroded or neglected.’ ” RRA-A, 229 F.3d at 744; see also Doe II, 862 F.2d at 781.

The government law enforcement agents flagrantly violated the JDA in this case. Congress enacted the JDA to protect the rights of juveniles: to ensure that juveniles can consult with their parents before being interrogated so that they do not “ ‘become the victim[s] of fear, then of panic.’ ” Doe IV, 170 F.3d at 1167 (citations omitted). We have noted that, particularly in the case of foreign juveniles, “the potential discombobulation may be even more resonant due to language differences and an exacerbated sense of isolation and helplessness.” Id. And yet, over thirty years after the JDA was enacted, government law enforcement agents trample even the most basic requirements of the JDA. Indeed, the government attorney claimed, at trial, that the agents went “above and beyond the call of duty” in their attempts to notify Jose’s parents. We do not believe that it furthers Congress’s intent to allow the government, in case after case, to ignore with impunity the protective requirements of the JDA. See, e.g., United States v. Doe, 366 F.3d 1069 (9th Cir.2004) (finding a violation of JDA, but excusing the error as harmless); Pierre Y., 280 F.3d 1008 (same); L.M.K., 149 F.3d 1033 (same); United States v. Doe, 149 F.3d 945 (9th Cir.1998) (same); United States v. Lyndell N., 124 F.3d 1170 (9th Cir.1997) (same); Doe I, 701 F.2d 819 (same). Courts should not close their eyes to these continuing violations by mindlessly reciting the rubric of harmless error as an overarching excuse for ignoring what Congress has clearly ordained; instead we must carefully examine the possible prejudicial effect of each violation with an eye toward the prophylactic purposes of the JDA.

We appreciate thus the district court’s careful analysis of the prejudice question. The district court was correct that the delay in bringing Jose before the magistrate did not effect any prejudice. The court also properly suppressed, at trial, Jose’s statement, because it found that the failure to properly notify Jose’s parents was prejudicial, in that it “caused” him to make his statement. The district court failed to consider, however, whether the indictment itself might not have been filed but for Jose’s statement. We must determine whether that error was harmless beyond a reasonable doubt. See Doe II, 862 F.2d at 781. We have held that a violation of the JDA may not be harmless (a) where the isolation stemming from a violation of the JDA led a juvenile to confess, and (b) where criminal proceedings were initiated on the basis of the juvenile’s confession. See id. 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. See id.⁷

The first question — whether violations of the JDA led, in part, to Jose’s confession-must be answered in the affirmative. The district court excluded Jose’s statement from evidence at trial, and thus, must have found that the violations “caused” the confession. We agree with the district court that in this case, as in Doe II, the failure to properly notify Jose’s parents likely caused his confession because it “needlessly isolated [Jose] in a strange environment and deprived him of support and counsel during the pre-arraignment period.” Doe II, 862 F.2d at 781. Jose was forced to make important decisions- — -whether to waive his right to counsel and whether to speak to the government agents — without the aid of “more mature judgment.” Male Juvenile, 121 F.3d at 43. Thus, we believe the district court was correct to conclude that the violations of the JDA caused, at least in part, Jose’s confession.

The second question — whether Jose’s prosecution resulted from his confession— is more difficult. While the district court believed that the statements were prejudicial and excluded them at trial, the court never considered whether Jose’s statements were the basis of the indictment itself. When the juvenile information was filed, Jose’s statements were the only evidence provided by the government to show that Jose “knowingly” committed a crime, as required under 21 U.S.C. § 960(1). The record is silent as to what other evidence the government could have produced at the time the juvenile information was filed to prove up the essential element of knowledge. We have held 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. See Doe II, 862 F.2d at 781. We thus remand this case to the district court to determine whether it is clear beyond a reasonable doubt that, at the time the juvenile information was filed, the government’s use of Jose’s confession to prove up the indictment on the essential element of knowledge was harmless.⁸

III. Conclusion

For the foregoing reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

Partial Concurrence and Partial Dissent by Judge ALARCÓN.

1 . Llanes-Angulo testified that she spontaneously volunteered to come to the Port of Entry if she was needed, and she told Cabrera that it would take her an hour and a half to do so. The judge credited the agent's testimony over Llanes-Angulo's.

2 . Llanes-Angulo testified that Agent Cabrera never asked her for permission to question Jose and that Llanes-Angulo did not give such permission. The court found Agent Cabrera’s testimony more credible, and concluded that Cabrera had asked for and received Llanes-Angulo’s permission to question Jose.

3 . Llanes-Angulo stated that she told officers she would come to the border, whereas the agents stated that Llanes-Angulo stated that she could come to the border within an hour and a half, but did not make clear whether she intended to do so or not. For purposes of analysis, this matters little. The government bears the burden of showing compliance with the JDA and must show that it made reasonable efforts to contact the foreign juvenile’s parents and that parental notification was not feasible. See Doe II, 862 F.2d at 780. Therefore, the government agents should have affirmatively clarified whether Llanes-Angulo would notify the mother or father, or whether Llanes-Angulo would come to the border.

4 . This presumes that Llanes-Angulo was a responsible adult who the officers reasonably believed could act in loco parenti. The JDA requires that either a "parent, guardian or custodian” be notified. 18 U.S.C. § 5033. We have said that notification of a juvenile's sister, where the sister spoke English and apparently translated for the non-English speaking parents, might substitute for parental notification. See Doe III, 219 F.3d at 1012, 1014-15. While we presume, for purposes of analysis, that the aunt was competent to act in lieu of Jose's parents, we note that this requirement must also be read in light of the purposes of the JDA: to ensure that the juvenile is not left alone in a strange environment without advice and comfort of a responsible adult who can provide guidance. Giving the Miranda warning to a family member or friend who cannot provide the necessary assistance thwarts the purpose of the act. Indeed, in this case, the aunt declared under oath that she would not have felt comfortable making any decision about whether Jose could be interrogated because she was not his parent. Because the government violated the JDA by failing to provide Llanes-Angulo with the Miranda warning, we need not decide whether Llanes-Angulo was competent to act in lieu of Jose's parents.

5 . The Government claimed that it had to proceed expeditiously and could not wait before interrogating the minor because of the quantity of cocaine that was involved. This assertion is undercut somewhat by the officer’s statement that he handled this case the same way that he had handled ten to fifteen other juvenile cases.

6 .We further note, because this situation is likely to recur, that it is highly doubtful that a juvenile can waive consular notification. This court has held that a juvenile cannot waive the right to parental notification. See United States v. L.M.K., 149 F.3d 1033, 1035 (9th Cir.1998) (concluding that § 5033 "does not permit the juvenile to waive notification of the parents”). The role of consular notification is to permit "diplomatic officials to become involved as surrogates for parents who are not in the country.” KRA-A, 229 F.3d at 746 (emphasis added). It stands to reason that if a juvenile cannot waive the right to parental notification, the juvenile cannot validly waive . the right to consular notification. Indeed, there is even a greater reason not to allow a waiver of consular notification. A juvenile will intuitively grasp the significance of parental notification, but a juvenile is less likely to understand the important role of the consulate as surrogate. Where the statute does not permit waiver of the right to parental notification, we see no reason that a measure intended to supplant parental notification could be waived.

7 . Although our dissenting colleague disputes the Doe II court’s holding on these points, Doe II is, nonetheless, this circuit’s law. Indeed, the Government itself argued that the standard for prejudice was "beyond a reasonable doubt.” Appellee Reply Br. at 25 ("This Court must address the third prong of the Doe II analysis: Were the statutory violations harmless to Jose A. beyond a reasonable doubt?”). Hulteen v. AT & T Corp., 441 F.3d 653, 658 (9th Cir.2006), dealt with whether a panel could disregard prior precedent based on a so-called "sea change” in the law that occurred after that prior precedent was handed down. No such intervening Supreme Court decision or statute has called Doe II into question — certainly not United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), decided seven years before Doe II. We are therefore bound to apply Doe II as the law of the circuit.

8 . We acknowledge that the government went on to prove at trial — with-out the aid of Jose's confession — that Jose knowingly committed the crime. The question here is different: whether, at the time the information was filed, the government could produce enough evidence to indict Jose for a crime that required knowledge. We are not, as the dissent charges, making our own factual and credibility findings. Even if we accept the evidence in the light most favorable to the judge's findings at trial, there was simply no inquiry made on this critical issue during the district court's hearing. Because we cannot conduct this inquiry with any certainty and because the district court never specifically considered whether the confession ''caused” the government to initiate its prosecution, we remand.