U.S. v. Doe

• Decision Date: 08 December 1988
• Docket Number: No. 87-5367,87-5367
• Citation: 862 F.2d 776
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 776

862 F.2d 776

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

No. 87-5367.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 7, 1988.

Decided Dec. 8, 1988.

Robert E. Schroth, San Diego, Cal., for defendant-appellant.

Peter K. Nunez, Bruce R. Castetter, and John P. Pierce, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, TANG and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

This appeal from a delinquency determination raises questions concerning the scope and meaning of the Federal Juvenile Delinquency Act, 18 U.S.C. Secs. 5031 et seq. (1974). Appellant, a juvenile and citizen of Mexico to whom we refer as John Doe, also challenges the sufficiency of the evidence used to convict him of importation into the United States of illegal aliens under 18 U.S.C. Sec. 5032. We find that the government violated the prompt arraignment and notification provisions of the Juvenile Delinquency Act. We reverse and remand for a determination of whether the statutory violations prejudiced Doe's proceedings.

FACTUAL BACKGROUND

On the night of September 21, 1987, United States Border Patrol Agents sighted, pursued, and overcame a Buick station wagon carrying twelve Mexican citizens near the United States-Mexico border. The vehicle was first seen driving with its headlights off through an open field approximately one to one-and-a-half miles from the Otay Mesa Port of Entry. Border agents followed the car as it continued onto a dirt farm road, then onto Otay Mesa Road, and finally, as it crossed the border into the United States, onto Interstate 805. The agents maintained surveillance as the Buick turned off I-805 onto side streets and its occupants dispersed. John Doe was ultimately apprehended in a garage about a half-mile from the station wagon.

Doe was then taken, along with the other occupants of the vehicle, to the Border Patrol Station at Brown Field. There, Border patrol agents began to question Doe for purposes of completing the series of According to the testimony of Agents Robert Fagan and Jose Livanios, they each then promptly advised Doe in Spanish of his rights as a juvenile using the standard juvenile rights card. These rights include the rights to use a phone, to consult a lawyer, and to have a deportation hearing or to return voluntarily to one's country of origin. The juvenile rights form that was introduced at trial did not bear Doe's signature, but did include a one-sentence statement--apparently written by Doe--that agents had allowed him to make a phone call.

forms with which persons suspected of illegal entry into this country are processed. The first of these forms was the I-213, a biographical and narrative record compiled for deportability purposes. In response to biographical questioning, the agents in charge of processing Doe learned that he was a minor.

Doe was also processed with Form I-274, which testimony suggested was similar to the juvenile rights form with the exception that the I-274 also mentioned the possibility of Doe going to jail. The I-274 affords detainees four basic rights: (1) the right of voluntary return to their country; (2) the right to speak to a lawyer; (3) the right to speak to a representative of the consulate of their country of origin; and (4) the right to an immigration hearing. According to Agent Fagan's testimony, these rights are not mutually exclusive; detainees may exercise any or all of them. Doe signed this form, choosing the option of voluntary return to Mexico.

The questioning of Doe for purposes of immigration processing continued. During this questioning, Doe told the Border Patrol agents that he had been the driver of the Buick. When the forms were completed, the Agents advised Doe that he was going to be charged criminally. Doe was sent along to the Prosecution Unit of the Border Patrol, wherein he was processed with Form I-326. At this point, Doe became reticent. The I-326 produced at trial stated: "The defendant refused to make a statement and requested to speak to a lawyer. All information was taken from arresting agent's report."

Doe was arraigned on the morning of September 23, 1987. He was represented at his arraignment by counsel, who moved to either dismiss the information or suppress Doe's post-arrest statements on the grounds that the government had failed to comply with the requirements of section 5033 of the Federal Juvenile Delinquency Act that it notify Doe's parents, guardian, or custodian of his arrest and bring him before a magistrate "forthwith." These contentions came before the district court at a hearing on October 19, 1987. The government stipulated at that time not to use Doe's incriminating post-arrest statements in its case-in-chief at trial. All other issues were put over for hearing on the following day, the scheduled trial date.

At the trial, the government introduced eight witnesses, including several Border Patrol agents and three of the eleven occupants of the Buick on the night of September 21. It did not use Doe's statements in its case-in-chief, but these statements were introduced through defense counsel's cross-examination of Agent Fagan. At the close of evidence, the court denied Doe's motion for a directed verdict on the basis of insufficient evidence. The court then heard argument on Doe's Federal Juvenile Delinquency Act motions and concluded "that the Government's actions did not constitute such violations of due process as would require dismissal of the charge." In reaching this conclusion, the court explicitly declined to make a finding as to whether the government had complied with the congressional statute. The court then stated: "There's no doubt in my mind but what Mr. [Doe] was driving the automobile. He is found to be a juvenile delinquent...."

On November 9, 1987, Doe was sentenced to one-year-and-one-day imprisonment and placed on three years probation. This judgment was entered on November 10, 1987. The notice of appeal was filed in a timely manner on that same day. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION

Doe contends that the government failed to comply with the Federal Juvenile Delinquency Act's requirements of parental notification and prompt arraignment. According to Doe, the government made no effort to contact his parents and did not even contact the Mexican Consulate to inform a representative of his country of his arrest. It also failed, Doe argues, to bring him before a magistrate "within a reasonable time." 18 U.S.C. Sec. 5033.

Doe's notification claim raises a predominantly factual question which we review under the clearly erroneous standard. ¹ See United States v. McConney, 728 F.2d 1195, 1203-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). His statutory claim based on the speedy arraignment provision presents a mixed question of law and fact for which de novo review is appropriate. Id. at 1202 (de novo review required when "the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles").

Our inquiry into both the notification and arraignment claims proceeds in three stages. First, we address whether the government violated the requirements of the Juvenile Delinquency Act. If it did, we reach the second question: whether the government's conduct was so egregious as to deprive Doe of his right to due process of law. See In Re Gault, 387 U.S. 1, 31, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967); United States v. Doe, 701 F.2d 819, 822 (9th Cir.1983). If it was not, we reach the third question: was the violation harmless to the juvenile beyond a reasonable doubt? See Bank of Nova Scotia v. United States, --- U.S. ----, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988); United States v. Indian Boy X, 565 F.2d 585, 592-93 (9th Cir.1977), cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978).

A. Notification

The Federal Juvenile Delinquency Act applies to illegal aliens as well as to American citizens. See Doe, 701 F.2d at 822. Even if the juvenile is an illegal entrant into this country and his parents reside abroad, the government must make reasonable efforts to notify the parents. 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, in which case the government may opt for the alternative of notifying a foreign consulate in this country. Id. The burden of showing compliance with this statutory requirement is on the government.

In this case, there is no dispute that the government did not even attempt to contact Doe's parents. This lapse in itself amounted to a violation of the statute. The district court apparently thought, and the government argues on appeal, that the fact that Border Patrol agents afforded Doe the opportunity to call his parents was sufficient to satisfy the statute. The language of Sec. 5033, however, is clear. It reads:

Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer ... shall immediately notify ... 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. Sec. 5033 (emphasis added). The statute makes no provision for notification of his parents by the juvenile. The statute unambiguously states that the required communication must have substantive content: notification "of the rights of the juvenile and of the nature of the alleged offense." The government must do so, and in this case it has neither done so nor made a showing as to why compliance with the statute would have been unfeasible.

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