Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. CR-06-02713-JAH
Argued and Submitted August 9, 2007
Filed June 12, 2008; Vacated January 13, 2009
Reargued and Resubmitted April 30, 2009 Pasadena, California
Filed January 26, 2010; Amended February 8, 2010
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and James K. Singleton,*fn1 Chief District Judge.
Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge Berzon
The opinion filed on January 26, 2010 is amended to include Judge Berzon's concurrence in part and dissent in part.
R.P., a male juvenile, appeals from a proceeding in which he was found to be a juvenile delinquent based on violations of 8 U.S.C. § 1324(a)(1)(A)(ii) (transporting illegal aliens in the United States) and § 1324(a)(2)(B)(ii) (bringing illegal aliens to the United States for "commercial advantage or private financial gain"). He contends that the juvenile information should have been dismissed because the government violated certain provisions of the Juvenile Justice and Delinquency Prevention Act of 1974, Pub.L. No. 93-415, 88 Stat. 1109, 1133-38 (codified at 18 U.S.C. §§ 5031-5042), ("JDA") with regard to the institution of proceedings against him in federal court, his interrogation and arraignment, and the time-liness of his trial. He also appeals from the district court's judgment on the § 1324(a)(2)(B)(ii) counts, maintaining that there was insufficient evidence that he obtained or aided another in obtaining "commercial advantage or private financial gain." Because we conclude that § 5033 of the JDA was violated, we remand to the district court to consider whether the violations were a cause of R.P.'s confession.
I. Statutory Protections for Arrested Juveniles.
Under the Juvenile Delinquency Act, juveniles are entitled to distinct procedural protections with regard to interrogation and arraignment, the speed with which they are brought to trial, and the institution of delinquency proceedings against them in federal court. Upon the arrest of a juvenile, the arresting officer must "immediately advise [the] juvenile of his legal rights, in language [that is] comprehensi[ble] to a juvenile." 18 U.S.C. § 5033. The arresting officer must also "notify the parents, guardian or custodian of the rights of the juvenile," and the juvenile must "be taken before a magistrate judge forthwith." Id.
Before instituting delinquency proceedings in federal court, the "Attorney General" must "certif[y] to the appropriate district court" that one of three conditions exists: "the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction"; "the State does not have available programs and services" for juveniles; or "the offense charged is a crime of violence" or a specified drug-related felony. Id. § 5032. The Attorney General must also certify that "there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction." Id.
Lastly, a juvenile who is detained pending trial must be "brought to trial within thirty days from the date upon which such detention was begun," unless "additional delay was caused by the juvenile or his counsel, consented to by the juvenile and his counsel, or would be in the interest of justice in the particular case." Id. § 5036.
II. November 19, 2006 Arrest.
R.P. was arrested by federal border patrol agents on November 19, 2006, at approximately 5:00 p.m. on suspicion of smuggling aliens into the United States. R.P. and the other occupants of the blue Dodge Ram in which he was traveling were then transported to the Calexico Border Patrol Station. At the station, Border Patrol Agent Jesus Salazar asked R.P. his birth date. R.P. stated that he was born on January 18, 1988, making him 18 years old. Agent Salazar was informed by his dispatcher, however, that DHS records*fn2 showed a number of earlier arrests for R.P., and that the birth dates given on at least two of those occasions would make R.P. a juvenile on the day of this latest border-crossing. Neither Agent Salazar nor any of the other border patrol officers attempted to notify the Mexican Consulate or R.P.'s parents of R.P.'s arrest.
Sometime after 12 a.m., Agent Salazar advised R.P. of his Miranda rights and began a videotaped interview. In the interview, R.P. stated that he was a citizen of Mexico and that he had no documents allowing him to legally enter or remain in the United States; that he met a smuggler in the Mexican city of Mexicali who offered to smuggle him into the United States for $1900; and that he later agreed to drive a vehicle carrying illegal immigrants into the United States in exchange for a reduction of his smuggling fee to $500.
III. Proceedings Before the Magistrate Judge.
R.P. challenges the timeliness of his trial under the speedy trial provision of the JDA, 18 U.S.C. § 5036. We therefore lay out the course of the district court proceedings in some detail.
On November 21, 2006, at least 36 hours after his arrest on November 19, 2006, R.P. was arraigned on a complaint charging him with illegal transportation of aliens in violation of 8 U.S.C. § 1324. At the arraignment, appointed defense counsel informed the court that "[defendant] is a minor, that he's 17 years old, and that just about 20 days ago he was actually turned over to the Mexican consulate in San Luis and then taken to the Mexican authorities as a juvenile." Defense counsel presented no documents at that time to confirm R.P.'s age. The magistrate judge set a hearing date on the matter of R.P.'s juvenile status for December 1.
At the start of the December 1 hearing, defense counsel requested a continuance because the Mexican consulate had not yet interviewed R.P. The magistrate judge set the hearing for December 5, and indicated to defense counsel that evidence "that [R.P.] was previously removed as a juvenile" would likely not be sufficient to convince him that R.P. was a juvenile. However, the magistrate judge stated that verifying documents and testimony from the Mexican Consulate as to their authenticity would "lend[ ] a lot more credibility" to R.P.'s claim that he was a juvenile.
At the December 5 hearing, defense counsel stated that she had obtained faxed copies of R.P.'s birth certificate and the birth certificate of his mother by contacting R.P.'s mother in Mexico. Defense counsel also represented that a defense investigator was prepared to testify that he had contacted R.P.'s mother and obtained copies of the documents. The court informed defense counsel that "I'll just give you a tentative [ruling] that the birth certificate alone is not going to satisfy the Court without some other testimony," and that a faxed birth certificate "with the testimony that somebody spoke to somebody on the telephone" was not "going to suffice." The court decided to "give both sides [time] to prepare their cases," and set the hearing for December 11.
At the December 11 evidentiary hearing, R.P.'s fourth appearance before the magistrate judge, defense counsel informed the court that "the hearing obviously can't go forward at this time," because the Mexican consulate had not "yet received the birth certificate or other documentation," and no consular officer was available to testify. The magistrate judge then set the hearing for December 20, but noted that "that's going to be 30 days out," and stated "I do think there is a certain urgency that should be given this proceeding since it is age-determinative in how [R.P.] is treated."
When the hearing reconvened on December 20 the magistrate judge informed counsel that R.P. was not present because he had been transferred to San Diego. Defense counsel stated that she had with her R.P.'s birth certificate and a Mexican consular official who was prepared to testify, and that R.P.'s mother was on standby over the phone. Defense counsel also indicated that she wished to waive R.P.'s appearance. The government objected to the waiver, and the court refused to waive R.P.'s appearance, instead setting a hearing date for December 26.
Defense counsel and the magistrate judge then proceeded to discuss which party bears the burden of demonstrating juvenile status and what type of proof would suffice to demonstrate that R.P. was a juvenile. The magistrate judge indicated that it is "the [d]efense burden to prove that this individual is a juvenile," because he "identified himself originally" as an adult, and further stated "there's a presumption that he's an adult." The magistrate judge did not say precisely what the defense burden was, but informed defense counsel, "[y]ou're going to have to . . . convince me," and that a birth certificate "in itself would not be sufficient" because "you can get anything in Mexico that you want to pay for." He would consider it "pretty good evidence," however, if someone from the Mexican consulate testified as to the birth certificate's authenticity.
The evidentiary hearing on R.P.'s juvenile status was finally conducted on December 26. The magistrate judge opened the hearing by telling the government "I think you have the initial burden." The government presented the testimony of Agent Salazar, who identified R.P. and testified that R.P. had provided a birth date of January 18, 1988 at the time of his arrest. When he was asked by government counsel whether he had received additional information from his dispatcher regarding other arrests for R.P., Agent Salazar maintained that the birth dates R.P. had given upon his other arrests were "consistent" with the birth date R.P. provided to him. After Agent Salazar's testimony, the magistrate judge stated "I think the burden has shifted to the [d]efense now." The defense then called the Mexican consular official, who testified that he had contacted R.P.'s mother in Mexico and that she had provided an original copy of his birth certificate indicating his date of birth as January 1, 1989, as well as a residence letter from their county of residence. The consular official testified that, based on this evidence, he believed that R.P. was a minor. He also noted that R.P. had been returned as a juvenile to Mexico in October, 2006 through the Mexican consulate in Yuma, Arizona. The magistrate judge then found, based on the "credible evidence" provided by the defense, that R.P. was a juvenile.
The government filed a juvenile information the next day, alleging that R.P. had committed acts of juvenile delinquency. Counts One, Three, and Five of the information alleged violations of 8 U.S.C. § 1324(a)(2)(B)(ii),*fn3 including aiding and abetting that crime; Counts Two, Four, and Six alleged violations of 8 U.S.C. § 1324(a)(1)(A)(ii),*fn4 including aiding and abetting that crime. The same day, the government filed two additional documents. The first document, titled "Certification" and signed by United States Attorney Carol C. Lam, states that "the juvenile court of the State of California does not have jurisdiction over the above-referenced juvenile defendant" and "that there is a substantial federal interest in the case to warrant the exercise of federal jurisdiction." The second document, which is not dated, is entitled "Juvenile Delinquency Certification" and is signed by ...