United States v. Juvenile

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50597
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00814-MLH
JOSE D.L. (JUVENILE),
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
April 5, 2006—Pasadena, California
Filed June 30, 2006
Before: Myron H. Bright,* Harry Pregerson, and
Arthur L. Alarcón, Circuit Judges.
Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Alarcón
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
7193
UNITED STATES v. JOSE (JUVENILE) 7197
COUNSEL
Michelle Betancourt, Federal Defenders of San Diego, San
Diego, California, for the defendant-appellant.
Randy K. Jones, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
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.
7198 UNITED STATES v. JOSE (JUVENILE)
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 pur-
pose 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 uncov-
ered several packages wrapped in electrical tape.
After Officer Hill found the packages in the vehicle’s quar-
ter panels, he placed Jose in handcuffs. Officer Hill then pat-
ted 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
UNITED STATES v. JOSE (JUVENILE) 7199
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 con-
tact 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 physi-
cally 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 min-
utes 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 Moises Martinez first
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 permis-
sion 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.
7200 UNITED STATES v. JOSE (JUVENILE)
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 indi-
cated 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
UNITED STATES v. JOSE (JUVENILE) 7201
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 infor-
mation 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 infor-
mation 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 argu-
ment, 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, know-
ingly, 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 fail-
ing to notify Jose’s parents before questioning him. This
“technical violation,” the court concluded, did not violate
7202 UNITED STATES v. JOSE (JUVENILE)
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 offi-
cer that, while he knew he was involved in some illegal activ-
ity, 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 custo-
dial 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 serious-
ness 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.
UNITED STATES v. JOSE (JUVENILE) 7203
II. Discussion
We review compliance with the JDA, a question of statu-
tory interpretation, de novo. See United States v. Male Juve-
nile (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 pur-
suant 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 juve-
nile 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”) pro-
vides:
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.
18 U.S.C. § 5033. In reviewing Jose’s claim, the panel must
first “address whether the government violated the require-
ments 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
7204 UNITED STATES v. JOSE (JUVENILE)
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 par-
ents 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 “forth-
with.” The government bears the burden of showing compli-
ance 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.
[1] “[T]here is a dearth of case law interpreting ‘immedi-
ately’ 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
UNITED STATES v. JOSE (JUVENILE) 7205
another juvenile case, RRA-A, we found that a delay of four
hours was not “immediate.” RRA-A, 229 F.3d at 744.
[2] The delay at issue here is less than the delay in either
of our previous cases on this question. And yet the notifica-
tion 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 circum-
stances 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 (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.”
[3] 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 gov-
ernment violated the JDA by failing to “immediately” notify
Jose of his legal rights.
7206 UNITED STATES v. JOSE (JUVENILE)
2. Did the arresting officer improperly delegate the
notification of duties?
[4] 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 notifi-
cation 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 offi-
cer” 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”).
[5] Nonetheless, it seems an overly narrow reading of “ar-
resting 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 con-
ducted 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 vio-
lation of the JDA.
UNITED STATES v. JOSE (JUVENILE) 7207
3. Were Jose’s parents immediately notified that he was
in custody and notified of his rights?
[6] 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 juve-
niles 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
(1962)).
[7] 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 pro-
tection. 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 notifica-
tion is not feasible may the government notify a foreign con-
sulate 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 locat-
ing the parent. RRA-A, 229 F.3d at 746. It also allows a coun-
7208 UNITED STATES v. JOSE (JUVENILE)
try’s diplomatic officers to become involved as surrogates for
the parents. See id.
[8] The government contends that it made “every effort” to
comply with these notification provisions. We disagree. Gov-
ernment agents notified Llanes-Angulo that Jose had been
detained at the border, but that was the extent of their compli-
ance with the JDA. Llanes-Angulo offered the agents a num-
ber 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 con-
sult 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
3
Llanes-Angulo stated that she told officers she would come to the bor-
der, 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 affir-
matively clarified whether Llanes-Angulo would notify the mother or
father, or whether Llames-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 com-
UNITED STATES v. JOSE (JUVENILE) 7209
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 affirma-
tively offered the opportunity to consult with the juvenile.
Instead, agents waited nine minutes — hardly a “reasonable
time” to allow parental notification — and then began interro-
gating 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 gov-
ernment 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 par-
ents 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
fort 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 han-
dled 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
7210 UNITED STATES v. JOSE (JUVENILE)
4. Was Jose taken to a magistrate forthwith?
[9] 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 interro-
gated 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 morn-
ing, 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 court-
house from 9:00 a.m. The assigned magistrate began arraign-
ments 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 ses-
sion 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.
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 par-
ents”). The role of consular notification is to permit “diplomatic officials
to become involved as surrogates for parents who are not in the country.”
RRA-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 juve-
nile is less likely to understand the important role of the consulate as sur-
rogate. 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.
UNITED STATES v. JOSE (JUVENILE) 7211
The government admits, as it must, that the delay was
caused by its own processing. The magistrate began arraign-
ments 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.”
[10] 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 “forth-
with”). 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 pro-
cess 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 reason-
able period of delay for purposes of interrogation, it would
not excuse the additional twenty-one hour delay after interro-
gation was completed before Jose was presented to the magis-
trate.
7212 UNITED STATES v. JOSE (JUVENILE)
[11] 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 mag-
istrate, and therefore that the government violated the JDA
when it failed to present Jose to a magistrate forthwith.
B. Due Process Violation
[12] 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 juve-
nile] of his rights to due process.” Doe II, 862 F.2d at 779.
We conclude that, under our case law, those multiple viola-
tions 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.
[13] 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 advan-
tage 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 cir-
UNITED STATES v. JOSE (JUVENILE) 7213
cumstances 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 guar-
antees.” Doe II, 862 F.2d at 781. Thus, even if the govern-
ment’s violations of the JDA did not violate Jose’s right to
due process, we must next consider whether Jose was preju-
diced 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, particu-
larly in the case of foreign juveniles, “the potential discombo-
bulation may be even more resonant due to language
differences and an exacerbated sense of isolation and help-
lessness.” 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 par-
ents. We do not believe that it furthers Congress’s intent to
allow the government, in case after case, to ignore with impu-
nity the protective requirements of the JDA. See, e.g., United
States v. Doe, 366 F.3d 1069 (9th Cir. 2004) (finding a viola-
tion 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);
7214 UNITED STATES v. JOSE (JUVENILE)
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.
[14] 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 juve-
nile’s confession. See id. If a violation of the JDA was preju-
dicial 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
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 Gov-
ernment itself argued that the standard for prejudice was “beyond a rea-
sonable 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 (1981), decided seven years
before Doe II. We are therefore bound to apply Doe II as the law of the
circuit.
UNITED STATES v. JOSE (JUVENILE) 7215
[15] 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 deci-
sions — 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 vio-
lations of the JDA caused, at least in part, Jose’s confession.
[16] 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 evi-
dence the government could have produced at the time the
juvenile information was filed to prove up the essential ele-
ment 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 appro-
priate. 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 harm-
less.8
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
7216 UNITED STATES v. JOSE (JUVENILE)
III. Conclusion
For the foregoing reasons, we REVERSE and REMAND
for further proceedings consistent with this opinion.
ALARCÓN, Circuit Judge, concurring and dissenting:
I concur in the Majority’s holding that the Government did
not egregiously deprive Jose of his right to due process in
delaying to advise him of his Miranda rights and in failing to
bring him before a magistrate judge “forthwith.” Majority Op.
at 7212.
I respectfully dissent from the Majority’s puzzling and con-
tradictory determination that “[t]he government law enforce-
ment agents flagrantly violated the JDA in this case,”
Majority Op. at 7213, but that their conduct “did not, in the
circumstances presented, affect the fundamental fairness of
the proceedings.” Majority Op. at 7212-13.
Respectfully, I cannot join the Majority’s number because
(1) it has failed in its duty to view the evidence in the light
most favorable to the prevailing party, and (2) it has ignored
this Circuit’s harmless error standard of review for JDA viola-
tions and instead, fashioned a prejudicial per se standard that
is applicable even to a good faith and harmless failure to com-
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 con-
fession “caused” the government to initiate its prosecution, we remand.
UNITED STATES v. JOSE (JUVENILE) 7217
ply with the JDA. Under the law of this Circuit, violations of
the JDA are reviewed under the harmless error standard. A
three-judge panel cannot overturn the law of this Circuit. See
Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1313
(9th Cir. 1986) (explaining that a three-judge panel must fol-
low Ninth Circuit precedent). I would affirm the District
Court’s well-reasoned conclusion that the agents’ “technical
violation” of the JDA was not egregious, and, therefore, the
agents’ failure to comply with its requirements was not preju-
dicial. I would not remand this matter for an evidentiary hear-
ing to determine whether the information should be
dismissed. In so holding, the Majority has violated the
Supreme Court’s express holding in United States v. Morri-
son, 449 U.S. 361, 365 (1981) that dismissal of an accusatory
pleading is not a proper remedy where statements obtained
from an accused must be excluded. The District Court did not
consider any evidence obtained in violation of the JDA in
finding that Jose was guilty of importing cocaine into the
United States. The Majority has also erred in directing the
District Court to apply a proof beyond a reasonable doubt
standard upon remand in determining whether the alleged
nonconstitutional error was harmless.
I
Because the Majority has, contrary to the law of this Cir-
cuit, improperly insinuated its own factual and credibility
findings in its summary of the evidence, I will set forth the
evidence presented to the District Court in the light most
favorable to the Government as the prevailing party. See
United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972)
(“It is not our function to re-weigh the evidence and pass on
the credibility of the witnesses.”); see also Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979) (“Once a defendant has been
found guilty of the crime charged, the factfinder’s role as
weigher of the evidence is preserved through a legal conclu-
sion that upon judicial review all of the evidence is to be con-
sidered in the light most favorable to the prosecution.”);
7218 UNITED STATES v. JOSE (JUVENILE)
Minidoka Irrigation Dist. v. Dep’t of Interior, 406 F.3d 567,
572 (9th Circuit 2005) (stating that “in reviewing [a] district
court’[s] findings of fact for clear error, we must view the evi-
dence in the light most favorable to the prevailing party”)
(internal quotations and citation omitted).
Mark Hill testified that he was a primary inspector with the
United States Customs and Border Protection (“CBP”). At
4:16 p.m. on May 10, 2005, Officer Hill was on duty at the
San Ysidro, California Port of Entry inspecting vehicles enter-
ing the United States. At that time, a gray Toyota 4-Runner
with Mexican license plates approached Officer Hill’s lane for
inspection. The vehicle was driven by Jose, a fifteen-year-old
juvenile. Jose immediately handed Officer Hill a Mexican
border crossing card before he was asked for identification.
Officer Hill asked Jose who owned the vehicle. Jose first
responded that he was the owner. A couple of seconds later,
he stated that the vehicle belonged to his uncle. Because of his
contradictory statements, Officer Hill asked Jose for the vehi-
cle registration. Jose reached into the glove compartment and
extracted what appeared to be a vehicle registration. Before
the document was handed to Officer Hill, Jose was asked to
disclose his uncle’s name. Jose looked at the vehicle registra-
tion and replied: “Daniel.”
Officer Hill asked Jose why he was entering the United
States. He replied that he was going shopping for his mother.
When asked whether he was transporting anything into the
United States, Jose replied: “Nothing.”
Officer Hill testified that during this conversation, Jose’s
“mouth appeared to get dry and he moved his eyes around a
lot.” Based on Jose’s responses and his demeanor, Officer
Hill decided to inspect the vehicle. After obtaining the keys
to the vehicle from Jose, Officer Hill tapped on the rear quar-
ter panel on the driver’s side. It emitted an extremely solid
sound. Based on his law enforcement experience, the door
UNITED STATES v. JOSE (JUVENILE) 7219
panel’s condition indicated to him that there was something
hidden inside the quarter panel. Officer Hill next tapped the
quarter panel on the passenger’s side. It also felt solid.
Officer Hill removed one of the panels with a screw driver
and discovered square or rectangular packages inside. He then
placed handcuffs on Jose. Officer Hill patted down Jose. Offi-
cer Hill did not find any money, an ATM card, or credit cards
in Jose’s possession. This was significant to Officer Hill
because Jose had stated that he had entered the United States
to go shopping for his mother. Officer Hill escorted Jose to
the security office and turned the vehicle over to Officer
Rodrigo Lopez. As Jose walked to the security office, he
appeared “somber.” He was not interrogated further by Offi-
cer Hill.
Officer Rodrigo Lopez testified that he was a customs offi-
cer with the CBP. On May 10, 2005, Officer Lopez was
assigned to the secondary inspection lot at the Port of Entry.
Officer Lopez inspected the quarter panels of the vehicle
driven by Jose. He observed packages wrapped in black elec-
trical tape. He then drove the vehicle to an x-ray area to deter-
mine whether there was contraband in any other part of the
vehicle. Officer Lopez poked one of the packages and discov-
ered that it contained white powder. He tested the powder. It
tested positive for cocaine. Officer Lopez removed twenty-
five packages from the vehicle. The total weight of the pack-
ages was 29.68 kilograms, or 63.3 pounds.
Maurice Wrighten testified that he was a Special Agent
with Immigration and Customs Enforcement (“ICE”). He was
assigned to investigate narcotics smuggling into the United
States. Special Agent Wrighten was qualified as an expert
regarding the retail or street value of cocaine. He testified that
in San Diego, the retail value of the cocaine seized from the
vehicle for personal use was $2,371,696.
Agent Eveleen Cabrera testified that she is employed by
ICE as a criminal investigator. At the time of the trial, she had
7220 UNITED STATES v. JOSE (JUVENILE)
served in that capacity for approximately a year and a half. On
May 10, 2005, she was assigned to the Port of Entry. At 5:15
p.m., she was requested to notify Jose’s parents, his guardian,
or his custodian that he had been arrested as he entered the
United States. When she met Jose, he was sitting in the secur-
ity office. He was not in handcuffs.
Agent Cabrera asked Jose if he knew why he was being
detained. He replied that the inspectors told him that they had
found drugs in the vehicle he was driving. Agent Cabrera then
told Jose that because he was a minor, she was required to
contact his parents. Agent Cabrera asked him for his parents’
phone number. Jose replied that his family did not have a tele-
phone. He gave Agent Cabrera his cousin’s telephone number
in Mexico.
When Agent Cabrera dialed that number, Maria Del Rosa-
rio Llanes-Angulo (“Ms. Llanes-Angulo”) answered the call.
She identified herself as Jose’s aunt. Agent Cabrera informed
Ms. Llanes-Angulo that Jose was being detained for bringing
drugs into the United States. Agent Cabrera asked Ms.
Llanes-Angulo if she could contact Jose’s mother or father.
Ms. Llanes-Angulo replied that Jose’s mother was at work
and did not have access to a telephone. She told Agent Cab-
rera that she would try to contact Jose’s mother at her work
place. Ms. Llanes-Angulo told Agent Cabrera that she did not
know how to contact Jose’s father because his parents had
separated. She promised to try to track him down.
Agent Cabrera asked Ms. Llanes-Angulo if she could come
to the Port of Entry. Ms. Llanes-Angulo stated that she lived
far away and “it would take her an hour and a half to even get
there.” Agent Cabrera asked Ms. Llanes-Angulo if it would be
okay for the agents to talk to Jose. She replied: “[Y]es.”
Agent Cabrera asked Ms. Llanes-Angulo to come to the Port
of Entry, if she failed to contact Jose’s parents.
Agent Cabrera testified on cross-examination that she had
handled ten to fifteen other investigations in which a juvenile
UNITED STATES v. JOSE (JUVENILE) 7221
was involved. In each of those cases, the procedure she fol-
lowed was similar to the one she followed in this matter. That
procedure consisted of determining whether it was necessary
to notify the juvenile of the nature of the offense that resulted
in his or her arrest, and to elicit the names of his or her par-
ents, guardian or custodian in order to notify them of the
arrest or detention of the minor. It was fully consistent with
the requirements of § 5033 of the JDA.
Agent Cabrera testified that the only involvement she had
in this matter was to determine whether Jose was aware of the
reason for his detention, and to make the telephone call to Ms.
Llanes-Angulo. Her work in this matter was complete after
she attempted to contact Jose’s parents. She did not partici-
pate in the interrogation of Jose after he waived his Miranda
rights or in transporting him to a magistrate judge for arraign-
ment.
Contrary to the Majority’s factual finding, Agent Cabrera
did not interrogate Jose. She merely asked him if he knew
why he was being detained. His response that the inspectors
told him that they had found drugs in the vehicle he was driv-
ing made it unnecessary to notify him why he was being
detained. She did not inquire further about his alleged crimi-
nal activity. Jose’s statement to her was not incriminating. It
was based on hearsay. Its admissibility at trial on the issue of
guilt would have been doubtful because it merely reflected
what he had been told by the inspectors. It was not an admis-
sion that he was aware that he was smuggling drugs into the
United States. The Government did not file a cross-appeal
challenging the District Court’s interpretation of § 5033 and
the order suppressing Jose’s statements to the agents. Accord-
ingly, this Court need not decide whether the suppression
order was valid in light of Agent Cabrera’s unsuccessful
attempt to notify Jose’s parents because they had no tele-
phone.
Edward Zuchelli testified that he was an ICE case agent
assigned to investigate whether Jose should be charged with
7222 UNITED STATES v. JOSE (JUVENILE)
smuggling cocaine into the United States. Shortly after 5:00
p.m., he spoke to Agent Cabrera. She told him Ms. Llanes-
Angulo was not able to get to the Port of Entry for an hour
and a half.
Moises Martinez testified that he was a Special Agent
assigned to the ICE. He testified that Jose read the Miranda
rights aloud in Spanish at approximately 5:24 p.m. Special
Agent Martinez asked Jose to initial the notification of rights
form if he understood the constitutional rights set forth
therein. Jose signed a waiver of his Miranda rights that was
also in Spanish. Jose also signed a waiver of his right to
require the agents to notify the Mexican consulate of his arrest
or detention. Nevertheless, the agents notified the Mexican
Consulate by facsimile at 7:06 p.m. that Jose had been
detained at the Port of Entry. Nine minutes after Jose waived
his Miranda rights, the agents interrogated Jose for twenty-
five to thirty minutes. During this conversation, Jose’s right
hand was free, but his left wrist was handcuffed to a metal
pole on the table for the safety of the officers pursuant to the
agency’s procedures. Jose’s father arrived at the security
office at 7:26 p.m., after the agents had completed questioning
Jose.
Agent Zuchelli testified that they had not waited for Ms.
Llanes-Angulo or Jose’s parents to arrive before questioning
Jose because “[s]ince we’re dealing with a minor things had
to be done expeditiously. Also the nature of the drugs —
when I found out it was cocaine — it was a substantial
amount of cocaine and I also had to proceed quickly.” During
cross-examination, Agent Zuchelli also stated that he did not
wait for an hour and a half before questioning Jose because
it was necessary “to speed up the process being the juvenile
has to be dealt with forthwith.”
The record shows that Agent Zuchelli has handled approxi-
mately four cases involving juveniles prior to questioning
UNITED STATES v. JOSE (JUVENILE) 7223
Jose. Agent Zuchelli was not asked to describe the procedure
he had previously followed in cases involving juveniles.
The Majority states that “the government law enforcement
officers flagrantly violated the JDA in this case.” Majority
Op. at 7213. The Majority has also found that “government
law enforcement agents trample even the most basic require-
ments of the JDA.” Majority Op. at 7213.
In a later passage, the Majority states: “We do not believe
that it furthers Congress’s intent to allow the government, in
case after case, to ignore with impunity the protective require-
ments of the JDA.” Majority Op. at 7213. My dictionary
instructs me that “impunity” means: “Exemption from punish-
ment or penalty.” Oxford English Dictionary (2d ed. 1989).
The record shows that the District Court did not allow the
failure of Agent Cabrera to notify Jose’s parents to go unpun-
ished. Citing United States v. Doe, 862 F.2d 776 (9th Cir.
1998) (“Doe II”), the District Court suppressed each of Jose’s
statements because of Agent Cabrera’s “technical violation of
5033” in failing to notify his aunt of his constitutional rights.
The Majority’s attempt to discredit Agent Zuchelli’s testi-
mony by relying on the conduct of other officers in prior
cases, who were not involved in the interrogation and process-
ing of Jose through the Court system, violates the principle
that appellate judges lack the power to weigh credibility or
decide factual issues. Cluchette, 465 F.2d at 754. It also has
ignored the rule that appellate judges must construe the record
in the light most favorable to the party that prevailed in the
trial court. Jackson, 443 at 319. Instead of construing the evi-
dence and the District Court’s findings that the violation of
the JDA by Agent Cabrera was “technical” and that Jose’s
statement was voluntary, the Majority has found that the offi-
cers’ conduct in this case was flagrant and trampled on his
rights with impunity. The Majority has improperly acted as a
trier of fact in reviewing the testimony of the witnesses in this
7224 UNITED STATES v. JOSE (JUVENILE)
matter and in going outside the record in considering the con-
duct of other officers in unrelated cases to bolster its findings.
II
The District Court denied Jose’s motion to dismiss the
information on the ground that Jose was not taken to a magis-
trate judge “forthwith” as required by § 5033. I agree with the
Majority’s conclusion that the delay in bringing Jose before
a magistrate judge was not so egregious as to deprive Jose of
his constitutional right to due process. Majority Op. at 7212.
I also agree with the Majority that “there is no evidence that
the government tried to use the delay to its advantage or that
the delay was undertaken in bad faith.” Majority Op. at 7212.
I strongly disagree with the Majority’s conclusion that the
District Court held that the failure of Agent Cabrera to notify
Jose’s parents of his arrest was prejudicial. In suppressing
Jose’s statements, the District Court reasoned as follows:
In this case, the Court concludes that there was a
violation of 5033 by the testimony of both the aunt
and Agent Cabrera. Nobody notified the custodian,
the aunt or parents of the rights of the juvenile prior
to questioning. They were notified of the circum-
stances involving drugs, but it does require a notifi-
cation of rights. Now the Court having concluded
that there was a technical violation of §5033, the
question then becomes what is the remedy?
Tr. of Motion Hearing/Court Trial at I-83, June 1, 2005
(emphasis added).
The Majority has summarized the District Court’s rationale
for suppressing Jose’s statements as follows: “The court also
properly suppressed at trial, Jose’s statements, because it
found the failure to properly notify Jose’s parents was preju-
UNITED STATES v. JOSE (JUVENILE) 7225
dicial, in that it ‘caused’ him to make his statement.” Majority
Op. at 7214.
The District Court did not find that the failure to notify
Jose’s parents was prejudicial because it caused Jose to make
a statement. In fact, the record shows that the District Court
found that the violation was “technical” and that “the state-
ment that the juvenile made was voluntary under the totality
of the circumstances.” Tr. of Motion Hearing/Court Trial at I-
85. The District Court also stated: “[I]f the juvenile elects to
testify, then, because I don’t think it’s a due process violation,
I think that the statement was voluntary. Then if the juvenile
elects to testify, you may examine the juvenile about any
statements made.” Id.
In support of its analysis of the impact of the officer’s tech-
nical violation of Jose’s statutory rights, the Majority finds
that “over thirty years afer the JDA was enacted, government
law enforcement agents trample even the most basic require-
ments of the JDA.” Majority Op. at 7213. In a later passage,
the Majority states “[w]e do not believe that it furthers Con-
gress’s intent to allow the government, in case after case, to
ignore with impunity the protective requirements of the JDA.”
Id.
There is no evidence in the record that supports the Majori-
ty’s factual finding that the officers acted in this matter with
impunity or that they trampled on the protective requirements
of the JDA for over thirty years. Instead of citing testimony
in this case to support its factual findings, the Majority myste-
riously relies on the testimony presented in five cases decided
by this Circuit in which the record apparently showed JDA
violations. It should be noted, however, that the failure of the
officers to follow the JDA was found to be harmless in each
of these cases. The conduct of the officers found to be harm-
less in the cases cited by the Majority cannot logically be
relied upon as proof that the agents in this case flagrantly
7226 UNITED STATES v. JOSE (JUVENILE)
trampled on Jose’s JDA rights without fear of being punished
or sanctioned for their conduct.
The most alarming aspect of the Majority’s opinion is its
refusal to apply the law of this Circuit which clearly provides
that we must affirm if a juvenile fails to demonstrate that he
or she was prejudiced as a result of the failure of law enforce-
ment officers to comply with the JDA. Instead, it has created
a new rule that a violation of the requirements of § 5033 is
prejudicial per se. The Majority has cited five decisions of
this Court that provide that we must apply the harmless error
standard of review when law enforcement officers fail to fol-
low the requirements of the JDA. Majority Op. at 7213-14. It
has defiantly declined, however, to follow the law of this Cir-
cuit as set forth in the cited cases. The Majority excuses its
recalcitrance by stating: “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.” Majority Op. at 7214. What
the Majority airily dismisses as “rubric” is the law of this Cir-
cuit. A three-judge panel of this Court is required to follow
the law of the Circuit. Taylor, 787 F.2d at 1313. The Majority
has failed to demonstrate that the agents’ good faith attempt
to comply with the JDA was egregious or prejudicial.
III
A
Notwithstanding its determination that the officers did not
act in bad faith in failing to comply with the JDA, nor was
their conduct so egregious as to “affect the fundamental fair-
ness of the proceeding,” Majority Op. at 7213, the Majority
has surprisingly ordered a remand for a determination by the
District Court “whether it is clear beyond a reasonable doubt
that, at the time the juvenile information was filed, the gov-
ernment’s use of Jose’s confession to prove up the indictment
UNITED STATES v. JOSE (JUVENILE) 7227
on the essential element of knowledge was harmless.” Major-
ity Op. at 7215.
The Majority apparently believes that the suppression of an
accused’s statement, in which he or she admits knowledge of
the commission of a crime, also compels the dismissal of an
accusatory pleading. This conclusion is squarely contrary to
the principle announced in the Supreme Court’s decision in
Morrison, 449 U.S. at 365. In Morrison, the Court held that
when the Government has improperly obtained incriminating
information from an accused “the remedy characteristically
imposed is not to dismiss the indictment but to suppress the
evidence or to order a new trial if the evidence has been
wrongfully admitted and the defendant convicted.” Id. Here,
the District Court dutifully complied with Morrison by
excluding Jose’s statements. The Supreme Court instructed in
Morrison that where evidence has been obtained in violation
of the Fourth, Fifth, or Sixth Amendments, “[t]he remedy in
the criminal proceeding is limited to denying the fruits of the
transgression.” Id. at 366. The Court also stated:
Our numerous precedents ordering the exclusion of
such illegally obtained evidence assume implicitly
that the remedy does not extend to barring the prose-
cution altogether. So drastic a step might advance
marginally some of the ends served by exclusionary
rules, but it would also increase to an intolerable
degree interference with the public interest in having
the guilty brought to book.
Id. at 366 n.3 (quoting United States v. Blue, 384 U.S. 251,
255 (1966)).
In United States v. Winsett, 518 F.2d 51 (9th Cir. 1976), we
stated: “As it serves the purpose of deterring police miscon-
duct, the exclusionary rule is a ‘needed but grudgingly taken,
medicament; no more should be swallowed than is needed to
combat the disease.’ ” Id. at 54 n.4 (quoting Anthony G.
7228 UNITED STATES v. JOSE (JUVENILE)
Amsterdam, Search, Seizure and Section 2255: A Comment,
112 U.Pa.L.Rev. 378, 389 (1964)). The termination of this
action by dismissing the information is a lethal remedy that
would be summarily rejected by the Supreme Court as a vio-
lation of the Morrison decision because the District Court
suppressed each of Jose’s statements.
The Majority has cited Doe II, 862 F.2d at 776 for the prop-
osition that “[i]f 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.” Majority Op. at 7214, citing Doe II, 862 F.2d
at 781. In fashioning a remedy that would interfere with the
public’s interest that the guilty should be prosecuted for their
crimes, the three-judge panel that reviewed the Doe II case
did not cite or discuss the Supreme Court’s decision in Morri-
son that expressly bars the dismissal of an accusatory plead-
ing even in the face of constitutional error. The Doe II case
is also factually distinguishable. In Doe II, unlike the circum-
stances in the matter sub judice, the juvenile’s statements
were introduced into evidence. Doe, 862 F.2d at 778.
The Majority also cites United States v. Juvenile (RRA-A),
229 F.3d 737 (9th Cir. 2000) as supporting authority for the
notion that a federal court may “ensure that the ‘prophylactic
safeguard for juveniles [is not] eroded or neglected.’ ” Major-
ity Op. at 7213. The Majority’s reliance on RRA-A is mislead-
ing. We did not hold in RRA-A that a district court may
dismiss an information as a sanction for a violation of the
JDA.
We held in RRA-A that because, “RRA-A’s confession was
the primary basis of evidence on which she was convicted[,]
. . . RRA-A’s confession should, accordingly, have been sup-
pressed.” RRA-A, 229 F.3d at 747. We did not hold that dis-
missal of the information was an appropriate remedy for a
violation of the JDA. Instead, we reversed the conviction and
remanded the matter to the district court. Id. at 748. Contrary
UNITED STATES v. JOSE (JUVENILE) 7229
to Majority’s characterization of the holding in RRA-A, the
remand was presumably for a determination by the Govern-
ment if it could connect RRA-A to the alleged criminal offense
in a re-trial, without the use of her confession. Thus, unlike
Doe II, this Court’s opinion in RRA-A is quite faithful to the
Supreme Court’s decision in Morrison. Because Doe II is
inconsistent with Morrison, we cannot apply it in this matter.
“Controlling law in this case, as in all cases governed by fed-
eral law, is what Congress has enacted and what the Supreme
Court has said regarding the key matters on which the case
turns.” Hulteen v. AT&T Corporation, 441 F.3d 653, 657 (9th
Cir. 2006). “Once we understand the terms of controlling law,
we can then determine whether there is circuit precedent that
is inconsistent. If so, we will have no choice but to ignore
such precedent or, to put it more delicately, conclude that
such precedent is not binding.” Id. at 657-658.
In Doe II, the majority decision ignored the controlling law
set forth in Morrison, or simply failed to discover it in its
research. In any case, it is not binding on this Court. Dis-
missal of an information is not an available remedy even
where the Government has obtained a statement from an
accused in violation of the Constitution. In relying on Doe II,
the Majority in this matter has apparently chosen to ignore or
defy the principle announced in Morrison, nor has it even
attempted to explain why Morrison is inapplicable if a state-
ment is excluded because of nonconstitutional errors commit-
ted by officers in violation of the JDA.
B
The Majority has also erred in instructing the District Court
to apply the reasonable doubt standard in determining whether
the statutory violations of the JDA were harmless. Majority
Op. at 7215. The Majority cites Doe II for this standard.
The Majority in Doe II stated that if a violation of the JDA
did not amount to a due process violation, the question was
7230 UNITED STATES v. JOSE (JUVENILE)
whether the “violation [was] harmless to the juvenile beyond
a reasonable doubt.” Doe II, 862 F.2d at 779. The harmless
beyond-a-reasonable-doubt test applies only to violations of
the Constitution. See United States v. Lane, 474 U.S. 438, 446
n.9 (1986); see also Chapman v. California, 386 U.S. 18, 24
(1967) (devising beyond-a-reasonable-doubt standard for
harmless error for constitutional violations). “Traditionally,
the courts have viewed as constitutional errors those errors
violating specific provisions of the Bill of Rights.” United
States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977)
(internal quotations and citation omitted). For nonconstitu-
tional error, we apply a less stringent standard. Id.; see also
Lane, 474 U.S. at 446 n.9 (stating that the test for “constitu-
tional errors is considerably more onerous than the standard
for non-constitutional errors.”). In the case of nonconstitu-
tional error, we ask whether the error was more probably than
not harmless. Valle-Valdez, 554 F.2d at 916; Kotteakos v.
United States, 328 U.S. 750, 758-59 (1946) (asking whether
nonconstitutional error may have had a substantial influence
on the outcome of the proceeding).
The authority cited by this Court in Doe II supports this
distinction. It does not support the premise for which it was
cited in Doe II. In Bank of Nova Scotia v. United States, 487
U.S. 250 (1988), the Supreme Court held that “[i]t would be
inappropriate to devise a rule permitting federal courts to deal
more sternly with nonconstitutional harmless errors than with
constitutional errors that are likewise harmless.” Id. at 256. In
Bank of Nova Scotia, the Court applied a test for nonconstitu-
tional error it had previously articulated in Kotteakos, 328
U.S. at 758-59. Id.
Similarly, in United States v. Indian Boy X, 565 F.2d 585
(9th Cir. 1977), we concluded that the appropriate standard
for a violation of the JDA was whether the “error was more
probably than not harmless.” Id. at 592. Therefore, although
in Doe II the Court misstated the appropriate standard to be
applied by an appellate court in reviewing nonconstitutional
UNITED STATES v. JOSE (JUVENILE) 7231
error, it cited cases that applied the appropriate standard. Fur-
thermore, the majority in Doe II did not instruct the district
court to determine whether the error was harmless beyond a
reasonable doubt. Instead, the majority in Doe II held that an
appellate court’s duty in reviewing nonconstitutional error is
to determine “was the violation harmless to the juvenile
beyond a reasonable doubt?” Doe II, 862 F.2d at 779. Con-
trary to the Majority’s instruction to the district court in this
matter, Doe II does not provide that a district court must
determine whether there was nonconstitutional error beyond
a reasonable doubt.
In Doe II, this Court stated that dismissal was appropriate
because it had the “discretion to reverse or to order more lim-
ited remedies so as to ensure that Doe’s rights are safeguard-
ed.” Doe II, 862 F.2d at 780 (emphasis added). We have the
discretion to determine the appropriate remedy, consistent
with binding legal authority, for violations of the JDA. It
would be an abuse of discretion as a matter of law to dismiss
an information in violation of the Supreme Court’s instruction
in Morrison that dismissal of an accusatory pleading is not a
proper remedy where evidence was excluded at trial.
IV
The Majority’s remand order will undoubtedly leave the
District Court totally baffled in another respect. The District
Court excluded all of Jose’s statements because Agent Cab-
rera failed to notify Jose’s aunt or his parents of his constitu-
tional rights. It found Jose guilty beyond a reasonable doubt,
however, based on his false statements to the primary inspec-
tion officer about his reason for entering the United States, his
demeanor, and the huge quantity of cocaine he was smuggling
into the United States. That evidence was obtained before
Jose was arrested. Jose has not challenged the sufficiency of
the evidence produced at his trial to establish his guilt beyond
a reasonable doubt.
7232 UNITED STATES v. JOSE (JUVENILE)
The Majority states that “[t]he 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 essen-
tial element of knowledge.” Majority Op. at 7215. This state-
ment ignores the evidence produced at trial and the law of this
circuit that knowledge can be inferred from the mere posses-
sion of a large amount of drugs. See United States v. Cervan-
tes, 219 F.3d 882, 893 (9th Cir. 2000) (inferring knowledge
from the possession of 30 pounds of methamphetamine); see
also Gaylor v. United States, 426 F.2d 233, 235 (9th Cir.
1970) (holding that testimony as to the value of cocaine was
relevant to the issue of knowledge since it tended to refute
“the possibility that a stranger could have placed such a valu-
able cargo in a vehicle in the hope that the vehicle could be
followed and the cocaine later recovered in the United
States.”).
Here, 63.3 pounds of cocaine, with a street value of more
than two million dollars, were found hidden in the vehicle
driven by Jose. This evidence was clearly sufficient under the
law of this Circuit to demonstrate that he had knowledge that
he was smuggling cocaine without reliance on his statements
to the officers.
I would affirm the District Court’s judgment in all respects.
I would not require the District Court to determine whether
the information should be dismissed because Agent Cabrera
failed to notify his parents, before he was interrogated by
other officers. The dismissal of the information would surely
be summarily reversed in a subsequent appeal by the Govern-
ment since it would be in violation of the rule announced by
our nation’s highest court in Morrison.