U.S. v. Doe, 02-10170.

• Decision Date: 11 May 2004
• Docket Number: No. 02-10170.,02-10170.
• Citation: 366 F.3d 1069
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a juvenile, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.3d 1069

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a juvenile, Defendant-Appellant.

No. 02-10170.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2003.

Withdrawn from Submission December 30, 2003.

Resubmitted March 12, 2004.

Filed May 11, 2004.

Rubin Salter, Jr., Tucson, Arizona, for the defendant/appellant.

Richard Gordon, Assistant United States Attorney, Tucson, Arizona, for the plaintiff/appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding.

Before: SCHROEDER, Chief Judge, CANBY, REINHARDT, TROTT, T.G. NELSON, HAWKINS, THOMAS, W. FLETCHER, BERZON, TALLMAN, and RAWLINSON, Circuit Judges.

CANBY, Senior Circuit Judge.

This is an appeal from a judgment of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042. The primary question for decision is whether the district court should have dismissed the information for violation of the special speedy trial provision of the Delinquency Act, 18 U.S.C. § 5036. The answer depends on the date on which the 30-day clock of § 5036 began to run. We join our sister circuits that have addressed the question and hold that time begins to run at the commencement of federal detention of the juvenile on the federal delinquency charge. By that calculation, there was no violation of § 5036 in this case and we accordingly affirm the district court's ruling.

A second issue that we must resolve concerns one of the requirements of § 5032 of the Delinquency Act. The section provides, in pertinent part, that no hearing shall be held for disposition of a juvenile after a finding of delinquency "until any prior juvenile court records of such juvenile have been received by the court, or the clerk of the juvenile court has certified in writing that the juvenile has no prior record, or that the juvenile's record is unavailable and why it is unavailable." 18 U.S.C. § 5032. The record in this case does not reflect that the district court received the specified records or certification. No objection was entered. We conclude that this requirement of § 5032 is not jurisdictional, and that any deficiency in the district court's compliance with the requirement did not rise to the level of plain error. We accordingly affirm the judgment of the district court.

I. THE 30-DAY SPEEDY TRIAL PROVISION OF § 5036

Factual Background

The appellant, whom we refer to as John Doe, is a juvenile Indian who assaulted a teacher in her home on the Tohono O'Odham Indian Reservation in Arizona in August 1999. Doe turned himself in to tribal authorities two months later. Two days thereafter, on October 22, 1999, tribal authorities charged Doe with three sexual assault offenses, one of which was the August assault against the teacher. Doe remained in tribal detention on those charges, and the tribal court ordered psychological evaluations.

It is not entirely clear from the record when federal authorities were notified of Doe's detention and charges. Doe's counsel in the tribal proceedings testified in district court that during tribal plea negotiations on November 10, 1999, the tribal prosecutor represented that he had been informed that, if tribal plea negotiations were successful, a federal declination to pursue charges could be obtained. There is nothing in the record to indicate who in the federal government had been contacted or when the contact occurred. The Assistant United States Attorney stated in the district court hearing on the motion to dismiss that she was not aware that anyone in her office knew of the case until they were informally advised of it in late November or early December. She asserted that in late December an investigator brought a report to her and a case investigative file was opened on December 30 in the office of the United States Attorney.

On January 12, 2000, the tribal prosecutor informed defense counsel that the federal government had changed its position and that federal charges would be filed. On January 13, the tribal prosecutor informed the tribal court that the federal authorities intended to prosecute and that he expected a federal writ to issue on or about January 24. At that point, the tribal prosecutor and defense counsel stipulated to a stay of all tribal proceedings; a tribal court hearing that had been set for January 14 was vacated.

On March 15, 2000, the United States filed an information charging Doe with three counts of delinquency, all arising from the assault on the teacher in August 1999. On the same date, the United States Attorney filed a certification pursuant to 18 U.S.C. § 5032 stating that the counts charged were "crimes of violence that are felony offenses; and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction." This certification is a precondition to federal prosecution of juvenile delinquency. § 5032. On March 17, 2000, the federal court issued a writ of habeas corpus ad prosequendum but the writ was not executed until March 27, 2000. Doe was released into federal custody by tribal authorities on or about that date. He made his first appearance before a federal magistrate judge on March 30, 2000, and was ordered detained pending trial, which was set for May 4, 2000.

On April 19, 2000, Doe moved to dismiss for violation of the 30-day speedy trial provision of § 5036. Doe also filed a motion to continue the trial for at least 30 days to permit a psychological examination. The district court denied the motion to dismiss, but granted the continuance. Additional continuances and a period of incompetency caused further consensual delay that is not in issue. Doe ultimately pleaded guilty but reserved his right to appeal the denial of his speedy trial motion. He was sentenced to two concurrent terms of approximately 39 months (ending with his 21st birthday).

Upon appeal, a three-judge panel of this court held that the speedy-trial provision of § 5036 had been violated, and reversed the judgment. See United States v. Doe, 324 F.3d 1057, 1061 (9th Cir.2003). The United States petitioned for rehearing en banc. The petition was granted and the three-judge opinion vacated, see United States v. Doe, 345 F.3d 1119 (9th Cir.2003), bringing this matter before this en banc court.

Discussion

The question for decision is when the clock begins to run for purposes of the speedy trial provision of the Juvenile Delinquency Act, § 5036. We conclude that the 30-day clock starts when federal detention on the federal delinquency charge commences. Section 5036 provides in relevant part:

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.

18 U.S.C. § 5036. Under the plain meaning of this provision, time begins to run on "the date upon which such detention was begun." Id.

One possible literal reading of this phrase would start the clock when any detention began. In practice, such an interpretation becomes nonsensical. In many cases, a juvenile might be held in state or tribal detention for more than 30 days before federal authorities even learn of the crime or the detention. Federal prosecution would be time-barred before it could begin. For this reason, other circuit courts have read "detention" in § 5036 to mean "federal detention," and have started the speedy-trial clock at its commencement. See, e.g., United States v. Three Male Juveniles, 49 F.3d 1058, 1064 (5th Cir.1995); United States v. Doe, 642 F.2d 1206, 1208 (10th Cir.1981); see also United States v. Wong, 40 F.3d 1347, 1371 (2d Cir.1994). This reading is buttressed by the requirements of § 5033 of the Juvenile Delinquency Act: whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer must notify the Attorney General and parents or guardian of the juvenile, and the juvenile must "be taken before a magistrate judge forth-with." Id. Some of these requirements make little sense unless "custody" is understood to be "federal custody." See United States v. Doe, 155 F.3d 1070, 1076-77 (9th Cir.1998) (en banc); Doe, 642 F.2d at 1207.

In this circuit, however, we placed a gloss on § 5036 that resulted in the starting of the speedy-trial clock at a time that did not necessarily coincide with the beginning of federal custody. In United States v. Andy, 549 F.2d 1281, 1283(9th Cir.1977), we held that § 5036 must be read in conjunction with § 5032. Section 5032 provides, among other things:

A juvenile alleged to have committed an act of juvenile delinquency... shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony ... and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

18 U.S.C. § 5032.¹

Our opinion in Andy agreed that it made no sense to start the clock when tribal custody began, but then proceeded to hold that the process of certification under § 5032 entered into the speedy-trial calculation. See Andy, 549 F.2d at 1283. Andy held that time began to run under § 5036 on:

(1...