U.S. v. Doe

Decision Date17 March 1999
Docket NumberNo. 98-50172,98-50172
Citation170 F.3d 1162
Parties99 Cal. Daily Op. Serv. 1929, 1999 Daily Journal D.A.R. 2475 UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a juvenile male, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael Petrik, Jr. and Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Daniel S. Drosman, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-97-02815-BTM.

Before: BEEZER, TASHIMA and WARDLAW, Circuit Judges.

BEEZER, Circuit Judge:

The district court entered judgment in which John Doe ("Doe"), a juvenile, is determined to be a juvenile delinquent. The court found that Doe knowingly imported merchandise (marijuana) subject to seizure in violation of 18 U.S.C. § 545. On appeal, Doe challenges the sufficiency of the certification that allowed him to be prosecuted in federal court. Doe also asserts that his confession should be suppressed both because he requested counsel and because the government failed to notify his mother of his Miranda rights. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

At approximately 8:00 a.m. on October 15, 1997, customs inspectors stopped the van Doe attempted to drive into California from Mexico. Inspectors discovered more than 100 pounds of marijuana in the van and detained Doe and his two companions traveling with him. Doe was placed in a holding cell.

Around 9:30 a.m., United States Customs Service Special Agent James Plitt ("Plitt") encountered Doe, introduced himself and informed Doe of the large amount of narcotics recovered from the van. Before Plitt could begin to explain the booking process or to interrogate Doe, Doe asked him, "What time will I see a lawyer?" Plitt responded that Doe could see an attorney within two days if the state prosecuted him and within one day if the federal government prosecuted him. Plitt advised Doe that he did not have to make any statements in the meantime, that Plitt would review Doe's rights with him in detail a little later and that, other than providing some preliminary biographical information, Doe did not have to make any statements.

Following an unsuccessful attempt to contact Doe's mother, Plitt left a message with a family member, explaining Doe's custody. At approximately 12:30 p.m., Doe's mother returned the call. Using a second family member as an interpreter, she spoke with Plitt. Plitt explained the circumstances under which Doe had been detained. Plitt did not inform her of Doe's Miranda rights.

Plitt took Doe to the interrogation room at approximately 2:00 p.m., formally arrested him and read him his Miranda rights. Doe indicated that he understood his rights and initialed an advice-of-rights form. Before Plitt could ask any substantive questions, Doe asked Plitt what would happen to his companions. Plitt explained that he could not answer that question until he had all of the facts. Doe inquired whether, if he answered Plitt's questions, Plitt could guarantee that his companions would be released. Plitt informed Doe that he could make no guarantees and that Doe's decision to answer any questions would have to be independent of any guarantees, deals or coercion. Doe asked whether any information he provided would assist his companions' release. Plitt reiterated his earlier answer. Over the course of the next 30-45 minutes, Doe answered Plitt's questions and explained his involvement in the smuggling. Plitt testified that Doe appeared somewhat nervous, but not frightened.

Between 4:00 and 4:30 p.m., Doe's mother arrived. Shortly thereafter, Plitt reviewed Doe's notice to appear in court, first with Doe alone and then with Doe and his mother. Plitt explained the notice and recommended that Doe seek counsel prior to his appearance. Plitt arranged for Doe to leave with his mother, instead of being taken to juvenile detention.

The government filed a three-count Superseding Information ("the Information"), signed by a Special Assistant United States Attorney, which charged Doe with juvenile delinquency for importing marijuana, possessing marijuana with intent to distribute, and importing merchandise subject to seizure. Attached to the Information was a Certificate signed by the United States Attorney, attesting that state juvenile court had "declined" to assume jurisdiction over Doe.

The district court denied Doe's motion to suppress his confession. Although the court concluded that Plitt's failure to notify Doe's mother about Doe's Miranda rights was a statutory violation, it determined that this error was harmless and that Doe's confession was knowing, intelligent and voluntary. Following a bench trial, the district court found Doe guilty beyond a reasonable doubt for importing merchandise subject to seizure and adjudged Doe a juvenile delinquent. The court sentenced Doe to serve time in a treatment center and placed Doe on probation until the conclusion of his minority.

II

To prosecute a juvenile in federal court, the government must follow the certification procedures required by 18 U.S.C. § 5032. 1 Certification is a jurisdictional requirement. See United States v. Doe ("Doe II "), 98 F.3d 459, 460 (9th Cir.1996). We review de novo whether a certification complies with the requirements of § 5032. 2 See id. We conclude that the government met the certification requirements here.

The Certificate recites that the state "declined" to prosecute Doe. Section 5032 requires that the state must "refuse[ ]" to prosecute a juvenile. Doe asserts that the use of "declined" rather than "refused" renders the certification invalid. We disagree. In applying § 5032, federal courts "refuse to elevate form over substance." United States v. White, 139 F.3d 998, 1002 (4th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 343, 142 L.Ed.2d 283 (1998). In United States v. Allen, 574 F.2d 435, 438 (8th Cir.1978), the Eighth Circuit paraphrased § 5032 as requiring certification that the appropriate state court "declines jurisdiction." In United States v. Hill, 538 F.2d 1072, 1076 (4th Cir.1976), the Fourth Circuit approved a § 5032 Certificate asserting that the state court "would decline to accept jurisdiction." The Certificate in the instant case was not deficiently worded.

Doe also asserts that the certification is invalid because the United States Attorney signed the Certificate but not the accompanying Information. We have held that the language of § 5032 and 28 C.F.R. § 0.57 are violated where a Certificate is signed by an Assistant United States Attorney rather than a United States Attorney. See Doe II, 98 F.3d at 461. In this case, however, the United States Attorney, the person "in whom the power to decide whether the United States will proceed against a juvenile is vested," id., signed the Certificate. His signature on the Certificate insures that the duly authorized official decided to prosecute the juvenile in the federal system and fulfills the requirements of the statute and its accompanying regulation. Cf. United States v. Wellington, 102 F.3d 499, 504 (11th Cir.1996) (holding that where the "purpose of the certification requirement has been satisfied by an authorized person making the decision to file," the certification is valid). We will not create an additional requirement that the charging document must also be signed by an official authorized to sign the Certificate. The absence of the United States Attorney's signature on the Information does not invalidate the certification.

III

We reject Doe's argument that he invoked his Fifth Amendment right to have counsel present during the interrogation. There is no dispute as to the words Doe used: "What time will I see a lawyer?" We review de novo whether these words invoke the right to counsel. See United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir.1994). In particular, we examine whether a suspect "articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). 3 We conclude that Doe did not invoke his right to have counsel present during interrogation.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), protects a "suspect's 'desire to deal with the police only through counsel.' " McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (quoting Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). Miranda applies only where a suspect requests "the particular sort of lawyerly assistance that is the subject of Miranda," namely, assistance during interrogation, not assistance in the subsequent judicial process. McNeil, 501 U.S. at 178, 111 S.Ct. 2204. A statement concerning an attorney made before interrogation begins is far less likely to be a request for attorney assistance during interrogation than a similar statement made during custodial interrogation. See Grant-Chase v. Commissioner, New Hampshire Dep't of Corrections, 145 F.3d 431, 436 n. 5 (1st Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 361, 142 L.Ed.2d 298 (1998); see also United States v. Scurlock, 52 F.3d 531, 537 (5th Cir.1995) (defendant's pre-interrogation request for an attorney "could reasonably be understood to be a recognition by the defendant of her need for an attorney in the future...."). Here, Doe questioned Plitt about an attorney before being read his Miranda rights, before being interrogated and even before biographical questioning began. 4 Plitt's response addressed when, in the course of the judicial process, Doe would be appointed counsel. We conclude that Doe's...

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