86 F.3d 869 (9th Cir. 1996), 94-10588, United States v. Eric B.

Docket Nº:94-10588.
Citation:86 F.3d 869
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. ERIC B., Defendant-Appellant.
Case Date:May 30, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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86 F.3d 869 (9th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


ERIC B., Defendant-Appellant.

No. 94-10588.

United States Court of Appeals, Ninth Circuit

May 30, 1996

Argued and Submitted Nov. 13, 1995.

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[Copyrighted Material Omitted]

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Celia Rumann, Assistant Federal Public Defender, Phoenix, Arizona, for defendant-appellant.

Vincent Q. Kirby, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding, No. CR-94-286-EHC.

Before: WIGGINS and LEAVY, Circuit Judges, and MANUEL L. REAL, [*] District Judge.

MANUEL L. REAL, District Judge:

On September 7, 1994, Eric B., who at the time was twelve-years-old, killed a seven-year-old child on a Navajo Indian Reservation in Arizona. The cause of death was a single bullet to the head. Eric B. was tried and adjudicated a juvenile delinquent. The court found that Eric B. had committed an act of involuntary manslaughter under 18 U.S.C. § 1112.

Eric B. now appeals claiming a violation of the Speedy Trial Act (Act), under 18 U.S.C. § 5036. In addition, Eric B. asks us to find that the district court erred by (1) denying his motion for judgment of acquittal; (2) failing to find the United States Attorney impermissibly obtained a grand jury subpoena; and (3) failing to find that Eric B.'s privacy right provided for under, inter alia, 18 U.S.C. § 5038 was violated. 1

We have jurisdiction pursuant to 28 U.S.C. § 1291, based on the entry of final judgment by the district court on December 12, 1994. Having considered the pleadings and argument before this Court, we affirm the district court's decision.



On the afternoon of September 7, 1994, Eric B., then twelve-years-old, received a gun from a friend at school. Eric B. was aware that two bullets were in the weapon when he took possession of the gun.

Beginning on his bus ride home from school to Chilchinbeto, a small Navajo community in Arizona, and throughout the rest of the afternoon, Eric B. showed the gun to several of his schoolmates. After arriving in Chilchinbeto, Eric B. showed the gun to a ten-year-old named Jimmy Sharkey. Aware that the gun was loaded, Eric B. pointed the gun at Jimmy. Shortly thereafter, Eric B. and Jimmy went to a field, where Eric B. shot one bullet at some rocks. Eric B. then unscrewed the barrel, dropped the spent casing on the ground, removed the one remaining bullet and put it in his pocket.

Eric B. went on to have several encounters with other juveniles in which Eric B. would point the gun at the person and pull the trigger. Samantha Charlie, a fifteen-year-old, was one such person. After pointing the empty gun at Samantha, Eric B. pulled the remaining bullet from his pocket and put it back in the gun. Eric B. then offered the gun to Samantha and suggested she go shoot Tamara Zonnie, one of Samantha's friends.

Next, Eric B. took the now loaded gun and came across eleven-year-old Myron Redmoustache. Eric B. pointed the loaded gun at Myron and pulled the trigger. The gun did not fire.

Finally, just minutes after leaving Myron, Eric B. came across some juveniles playing in an area known as "the bridge." One of these juveniles was seven-year-old Nathan Crank. Eric B. pointed the gun at Nathan and shot him in the forehead. Eric B. then gave the gun to a boy named Tyrell and instructed him to hide the gun.

Within a few hours of the shooting, tribal police arrested Eric B. and placed him in custody. That evening tribal authorities notified the FBI of the shooting. On September 8, 1994, the FBI contacted the United States Attorney and the tribal authorities about the case. The grand jury issued a

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subpoena for Eric B.'s school records on September 9, 1994, and FBI agents met with tribal authorities on that same day. FBI agents stayed in Chilchinbeto until the 10th of September, during which time the FBI requested information regarding any prior juvenile adjudication Eric B. may have had.

On September 12, 1994, an FBI agent interviewed the juvenile who had given Eric B. the gun. On that same day, the agent interviewed Eric B. and received documentation from tribal authorities that Eric B. had no prior delinquency history. The FBI never undertook jurisdiction of the case, leaving the matter to the tribal court.

On September 15, 1994, the United States Attorney filed an Information charging the juvenile with committing an act of delinquency--second degree murder. Federal authorities arrested and placed Eric B. into federal custody on September 16, 1994, Eric B. making his initial appearance that same day. Trial was later set for October 14, 1994.

At trial the district court found Eric B. did not commit second degree murder. The court held that the government had proven the lesser included offense of involuntary manslaughter, under 18 U.S.C. § 1112.

The district court held a disposition hearing on December 12, 1994, at which time it permitted the victim's family to be present. The district court also received several letters from the public expressing concern about the facts of the case and beseeching the court to ensure justice was done.





We first address whether Eric B.'s speedy trial rights under the Act were violated. This is a mixed question of law and fact, and therefore the appropriate standard of review is de novo. United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The Act provides for the number of days that may elapse before a juvenile must be brought to trial, if the juvenile is being detained pending trial. The applicable section, 18 U.S.C. § 5036, specifies:

If an alleged delinquent who is in detention pending trial is not brought to trial within thirty days from the date upon which such detention was begun, the information shall be dismissed on motion of the alleged delinquent or at the direction of the court, unless the Attorney General shows that additional delay was caused by the juvenile or his counsel, or consented to by the juvenile and his counsel, or would be in the interest of justice in the particular case. Delays attributable solely to court calendar congestion may not be considered in the interest of justice. Except in extraordinary circumstances, an information dismissed under this section may not be reinstituted.

According to Eric B., the government failed to bring this case to trial within this thirty day requirement. Tribal authorities arrested Eric B. on September 7, 1994. Five days later, on September 12, the FBI possessed all documentation necessary for certification, which is a statutory prerequisite for proceeding against a juvenile in federal court. See 18 U.S.C. § 5032. Eric B. was placed into federal custody four days later, on September 16, 1994.

Eric B. contends in this case that the clock started to run either on September 9 or, at the very latest, September 12. As such, because trial commenced on October 14, 1994, a minimum of thirty-two days elapsed before the juvenile was brought to trial. Consequently, even calculating the time in a manner most favorable to the government, this two day delay violated Eric B.'s right to a speedy trial under the Act.

To escape the clock from starting on September 16, which would result in a finding that no violation of the Act occurred, Eric B. relies heavily on United States v. Andy, 549 F.2d 1281 (9th Cir.1977). In Andy state authorities first detained the juvenile for seventeen days before surrendering jurisdiction to federal authorities. There, despite trial

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having commenced within thirty days of the juvenile being taken into federal custody, the court remanded the case to the district court to determine whether a violation of § 5036 may have occurred.

Believing it necessary to harmonize §§ 5032 and 5036, Andy articulated a new test to calculate the thirty day period. Andy held that the clock may begin from either:

(1) the date that the Attorney General certifies, or in the exercise of reasonable diligence, could have certified, to the conditions stated in Section 5032, or (2) the date upon which the Government formally assumes jurisdiction over the juvenile, whichever event earlier occurs.

Id., at 1283. The case was then remanded to district court in order to apply this new standard.

Here, Eric B. contends that the Attorney General had all documentation necessary on September 12 and could have certified the matter that day. Eric B. concludes, therefore, September 12 is the date we should use when calculating the thirty day period. Not satisfied with September 12 date, however, Eric B. urges us to designate an even earlier date, September 9, two days after tribal authorities arrested the juvenile, as the date on which the clock started to run.

At the outset we note that the September 9 date argued for by Eric B. ignores the express language in § 5032, which prohibited proceedings from commencing on that date because the government did not yet possess the necessary documentation. 2 This statutory condition precedent to the commencement of proceedings against Eric B. did not occur until September 12, 1994, when the government received documentation that Eric B. had not been previously adjudicated delinquent. Therefore Eric B.'s position with respect to the September 9 date must be rejected.

In looking at the September 12 date, several reasons cause us to conclude there was no violation of the Act in this case. Most simply, federal authorities took Eric B. into federal...

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