U.S. v. Gonzalez-Cervantes

• Decision Date: 04 March 1982
• Docket Number: D,GONZALEZ-CERVANTE,80-1746,Nos. 80-1735,s. 80-1735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1073

668 F.2d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Francisco GONZALEZ-CERVANTES, Defendant-Appellant.

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

Nos. 80-1735, 80-1746.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 2, 1981.

Decided Dec. 10, 1981.

Rehearing Denied March 4, 1982.

Gerald McFadden, San Diego, Cal., for Cervantes.

Juanita R. Brooks, AFPD, San Diego, Cal., for Doe.

Judith S. Feigin, Asst. U. S. Atty., San Diego, Cal., for United States.

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

Before ALARCON and BOOCHEVER, Circuit Judges, and THOMPSON ^*, District Judge.

ALARCON, Circuit Judge.

This consolidated appeal presents three issues: (1) whether a juvenile ¹ who consents to a trial before a magistrate has an absolute right to be tried or to enter a plea before a magistrate; (2) whether a juvenile can be sentenced to a probation term which, while no longer than a probation term that could be imposed on an adult, exceeds the term for which an adult could be imprisoned ; and (3) whether an error in the certification which permits a federal court to proceed against a juvenile divests the federal district court of jurisdiction.

I.

This appeal arises from proceedings instituted against two juveniles, John Doe and Francisco Gonzalez-Cervantes.

A. Proceedings Against Doe

An information was filed in the magistrate's court, charging John Doe with being a juvenile delinquent, ² in violation of 18 U.S.C. § 5032. The criminal activity underlying the juvenile delinquency charge was illegal entry into the United States, a violation of 8 U.S.C. § 1325. The United States Attorney, in compliance with 18 U.S.C. § 5032, filed a certification with the district court stating that the Juvenile Court in San Diego county refused to assume jurisdiction over Doe.

Doe attempted to file a consent form agreeing to proceed before a magistrate; the magistrate refused tender of the consent and transferred the case to district court. The district court judge, on Doe's motion, remanded the case to the magistrate, but later revoked the remand.

Doe was tried in the district court on stipulated facts and adjudicated a juvenile delinquent. He was placed on probation for one year.

B. Proceedings Against Gonzalez-Cervantes

In an information filed in magistrate's court, Cervantes was charged with juvenile delinquency, in violation of 18 U.S.C. § 5032. As in the case against Doe, the criminal activity underlying the juvenile delinquency charge was an illegal entry in the United States, in violation of 8 U.S.C. 1325. Again, a certification was filed by the United States Attorney stating that the Juvenile Court for San Diego county refused to assume jurisdiction over Cervantes.

Although Cervantes attempted to file his consent to the magistrate's jurisdiction, the magistrate refused to exercise jurisdiction over the case, and transferred it to district court. The district court judge denied the motion to remand.

Cervantes was tried on stipulated facts and adjudicated a juvenile delinquent. He was placed on probation until his 21st birthday, a period of about four years.

II. MAGISTRATE JURISDICTION

Both Doe and Cervantes (appellants) contend that under Magistrates Rule 2(c) ³, their filing of a consent to be tried before a magistrate makes the magistrate's jurisdiction mandatory, so long as the district court has not ordered the case be conducted before it and the United States has not petitioned for removal to the district court. They contend that reversal of their convictions is required because they attempted to file a consent to the magistrate's jurisdiction, and were tried over their objections in district court.

Rule 2(c) provides in part: "If the defendant signs a written consent to be tried before the magistrate ..., the magistrate shall take the defendant's plea to the misdemeanor charge." (emphasis added).

Although it might appear that Rule 2(c) does in fact make magistrate jurisdiction mandatory in a criminal proceeding, I believe that the rule is inapplicable in the context of a charge of juvenile delinquency.

The appellants were both charged with being juvenile delinquents. The criminal violation underlying the juvenile delinquency charge in both cases was a misdemeanor -illegal entry into the United States. See 8 U.S.C. § 1325. Appellants were not charged with a crime, however, they were charged with being juvenile delinquents, which is neither a misdemeanor nor a felony. Adjudication of juvenile delinquency is not a conviction of a crime, but rather, a determination of a juvenile's status. It is a civil rather than a criminal prosecution. See United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 405, 66 L.Ed.2d 249 (1980); United States v. Duboise, 604 F.2d 648, 649-50 (10th Cir. 1979); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976). Accordingly, Rule 2(c), which gives magistrates jurisdiction over misdemeanors is inapplicable in a juvenile proceeding under 18 U.S.C. § 5032.

Appellants contend that such an interpretation of Rule 2(c) discriminates irrationally against persons charged with juvenile delinquency, in violation of the equal protection and due process clauses of the Constitution. I disagree.

The contention that this construction of Rule 2(c) denies appellants equal protection is spurious. The juvenile delinquency statutes permit a juvenile to be proceeded against as an adult if the juvenile so requests in writing on the advice of counsel. 18 U.S.C. § 5032. Thus, appellants could have availed themselves of all procedures available to adults. The due process contention is similarly without merit.

The Supreme Court has indicated that under the due process clause, not all rights assured to an adult accused of a crime need be extended to a juvenile in his or her delinquency proceeding. The applicable due process standard to be used in evaluating whether a right assured to an adult need be extended to a juvenile is that of fundamental fairness. See McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985, 29 L.Ed.2d 647 (1971). This fundamental fairness standard has emphasized fact-finding procedures essential to a fair trial.

Appellants have set forth no reasons to support the proposition that the non-extension of Rule 2(c) to juveniles results in the denial of a fair trial, and we can perceive none. I therefore see no due process or equal protection problems from the non-application of Rule 2(c) to juvenile delinquency charges. ⁴

III. TERM OF PROBATION

18 U.S.C. § 5037(b) which governs sentences for those adjudicated to be juvenile delinquents provides in part: "Probation, commitment, or commitment in accordance with subsection (c) shall not extend beyond the juvenile's twenty-first birthday or the maximum term which could have been imposed on an adult convicted of the same offense, whichever is sooner...."

The maximum term of imprisonment permissible for an adult convicted of a misdemeanor violation of 8 U.S.C. § 1325 is six months. An adult convicted of violating 8 U.S.C. § 1325, however, can be given five years probation. 18 U.S.C. § 3651.

Appellants contend that § 5037(b) means that a person adjudicated to be a juvenile delinquent can only be put on probation for as long as an adult could be imprisoned. We disagree.

The plain meaning of § 5037 is that a juvenile can be given a term of imprisonment equal to the term of imprisonment that could have been imposed on an adult and can be given a probationary sentence equal to that which an adult could receive. An adult can receive a five-year probation term for violating 8 U.S.C. § 1325. Since Doe and Cervantes were both given terms of probation under this five-year maximum, the terms imposed on appellants are legitimate. ⁵

IV.

CERTIFICATION

Doe contends that the district court had no jurisdiction to proceed against him because the certification filed in his case was substantively incorrect. We find, however, that under the facts of this case, the substantive inaccuracy does not require reversal of his conviction.

18 U.S.C. § 5032 provides in part:

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 an appropriate district court of the United States that the juvenile court or other appropriate court of a state (1) does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency.... (emphasis added)

A certification stating that the juvenile court of San Diego County refused to assume jurisdiction over Doe was timely filed in the appropriate district court. Doe claims, on appeal, that certification was ineffective because the underlying criminal act was committed in Imperial County, and therefore, filing a certification from the Imperial County Courts was essential before the district court could proceed against him. The government concedes that the crime occurred in Imperial County-and thus that a certification referring to Imperial County would have been more appropriate. The government, however, claims such error does not require reversing Doe's conviction. ⁶ We find that this certification was sufficient to allow the district court to proceed against Doe.

If the existence of an accurate certification is jurisdictional, the conviction must be reversed. It is our view that the filing of an accurate certification is not jurisdictional.

We conclude from the language of the statute that a district court has jurisdiction over a juvenile if that juvenile is "alleged to have committed an act of juvenile delinquency...." While the statute quite clearly requires the filing of a certification before the district court can institute proceedings against...