United States v. JDT

• Decision Date: 12 August 2014
• Docket Number: No. 12–10005.,12–10005.
• Citation: 762 F.3d 984
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. JDT, Juvenile Male, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

762 F.3d 984

UNITED STATES of America, Plaintiff–Appellee,

v.JDT, Juvenile Male, Defendant–Appellant.

No. 12–10005.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 11, 2013.

Filed Aug. 12, 2014.

Keith J. Hilzendeger, Federal Public Defender's Office, Phoenix, AZ, for Defendant–Appellant.

Bruce M. Ferg, Assistant United States Attorney, Office of the United States Attorney, Tucson, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. 4:11–cr–00435–RCC–DTF–1.

Before: ARTHUR L. ALARCÓN and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.^*

Opinion by Judge ALARCÓN.

Concurrence by Judge BERZON.

OPINION

ALARCÓN, Circuit Judge:

JDT, a juvenile, appeals from the district court's adjudication of delinquency on six counts of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(c), for incidents occurring with four boys between the ages of five and seven in Fort Huachuca, Arizona. We first review whether the district court had subject matter jurisdiction over JDT's juvenile delinquency proceedings pursuant to 18 U.S.C. § 5032, and whether 18 U.S.C. § 2241(c) is unconstitutionally vague because it provides for arbitrary and discriminatory enforcement when both the victim and the perpetrator are under the age of twelve. We conclude that the district court had jurisdiction and that § 2241(c) is not unconstitutionally vague.

JDT further contends on appeal that the district court erred (1) applying the mens rea element of § 2241(c); (2) denying the Rule 29 motion for judgment of acquittal as to Counts 3 and 5 because there was insufficient evidence of anal penetration; (3) admitting the hearsay statements of a victim through the testimony of a social worker pursuant to Rule 803(4) of the Federal Rules of Evidence for medical diagnosis and treatment; and (4) denying JDT's requests to suspend his status as a juvenile delinquent. We find error only with respect to the district court's handling of JDT's suspension request, and accordingly vacate the district court's disposition decision and remand for further proceedings. We affirm in all other respects.

I

JDT was charged by the Government with sexually abusing five boys (E.F. (age 5), C.T. (age 7), C.M. (age 5), N.S. (age 6), and C.B. (age 6)) in and around Mott Circle, a residential neighborhood for military families in Fort Huachuca, Arizona, between June 1, 2010, and December 14, 2010. The housing units in Mott Circle surround a park with a playground. A large drainage ditch with a cement tunnel forms part of the perimeter of the neighborhood. JDT was ten years old at the time of the alleged federal crimes.

On February 10, 2011, the Government filed an Information charging JDT with six counts of violating § 2241(c) and a certification to proceed against JDT as a juvenile in federal court pursuant to 18 U.S.C. § 5032, as required under the Juvenile Justice and Delinquency Prevention Act of 1974, §§ 5031 et seq., referred to herein as the Federal Juvenile Delinquency Act (“FJDA”). ¹ The Government filed a Superseding Information on March 1, 2011, charging JDT with two additional counts. JDT was thus charged with four counts of violating § 2241(c) and § 2246(2)(B) (aggravated sexual abuse of a minor involving contact between the penis and mouth (Counts 1, 2, 4, and 6)); three counts of violating § 2241(c) and § 2246(2)(A) (aggravated sexual abuse of a minor involving contact between the penis and anus (Counts 3, 5, and 7)); and one count of violating § 2244(a)(5) and § 2246(3) (abusive sexual contact (Count 8)). The Government'scertification to proceed against JDT as a juvenile in federal court pursuant to § 5032, filed March 1, 2011, stated that

the juvenile court or the state does not have jurisdiction over the juvenile with respect to the alleged act of juvenile delinquency; that the offense charged is a crime of violence; and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

At a hearing in district court on March 9, 2011, JDT's counsel, Richard Raynor, objected to the Superseding Information as follows:

Mr. Raynor: Your Honor, the superseding information I would object to because it lacks jurisdiction because there's no certification for the additional charges that are added. There's no new certification for the additional charges that are added. There's no new certification by the U.S. Attorney himself who is delegating—

Government: I'm sorry. I probably just didn't give him that piece of paper.

The Court: You know, I signed this information and it's my recollection but—

Government: You know, I just have it in the copies I have and it wasn't attached but Dennis Burke did sign.

The Court: I believe, because I looked at that, and I believe that there was a certification and perhaps counsel can get a copy of that. And if somehow it turns out to be incorrect, file your motion and we'll come back and revisit that. My recollection is—because I look for that sort of thing and I believe there was a certification.

Mr. Raynor: Okay. Thank you, Your Honor. And, You Honor, as the Court knows, jurisdiction as an issue could be raised at any time. I just raised it at this moment.

The Court: That's fine and the record will reflect that you have objected. And if it turns out that my recollection is incorrect, then I guess you'll be able to move forward on that. But I think since I signed the information, I look for that and I believe that I did see it.

Government: I'm handing him a copy, Judge.

JDT did not raise any further challenges to the federal court's jurisdiction generally, or the validity of the Government's certification specifically, while proceedings were pending in the district court.

During a three-day bench trial, testimony revealed that the offenses occurred either in and around a “ditch,” (Counts 1, 2, 3 & 6), or in a vacant house (Counts 4 & 5), near Mott Circle where JDT and the victims resided.

Count 1: At trial, E.F. (age 5) testified that on December 14, 2010, he “sucked [JDT's] pee-pee” “[b]ecause [JDT] said” to; JDT said to “not stop” and he continued; although he wanted to go home, JDT said he “was going to hit [E.F.] with a stick” if E.F. stopped. C.T. testified that he witnessed the incident and that JDT “told [E.F.] to suck [JDT's] penis”; that JDT told him that if C.T. tried to leave the ditch, “he was going to throw this little square thing that's sharp” at someone's head, and “they would die”; and C.T. thought someone would actually die if hit with the object.

Counts 2 and 3: C.T. (age 7) testified that one time when he was alone with JDT in the ditch, JDT “made me suck his penis, and then he sticked his private parts in my behind”; and when JDT put his penis in C.T.'s butt, it was “pretty soft” like when it was in his mouth. When asked, “Where did [JDT] put his penis?,” C.T. answered JDT put his penis “[l]ike, straight in the hole of it.”

Counts 4 and 5: C.M. (age 5) testified that JDT took him to an empty house on Mott Circle and told him, “Don't worry”; JDT put his “pee-pee” in C.M.'s “mouth,” and in his “butt”; he took his pants off and was “lying down” on his stomach facing the wall, and that JDT was “right on top of [him],” also with his pants off; JDT stopped “[b]ecause he was done doing it.” When asked, “Were you ever afraid of [JDT]?,” C.M. replied, “No.”

Count 6: N.S. (age 6) was asked three times if JDT ever put his penis in his mouth, and each time he answered “No.” He testified JDT hurt him when “[h]e pulled down my pants[, but] he didn't put his penis in my mouth.” At no point did N.S. say that JDT put his penis in N.S.'s mouth or anus. N.S.'s mother testified that her son disappeared with JDT and when she asked him what happened, N.S. told her that JDT had him pull down his pants and touched N.S. on the butt. She asked him to show her what JDT did and he “crawled up on to the bed, on top of [her] lap and jumped up and down in a missionary position.” Judy Pike, a social services counselor at Fort Huachuca Medical Clinic, testified that she met with N.S. and he told her that JDT led him into an empty house and told N.S. to touch JDT's privates, “to put his mouth on [JDT's] private.” JDT's counsel objected to the introduction of these hearsay statements to Pike. Defense counsel argued that the testimony “doesn't fit within the hearsay” exception for medical diagnosis or treatment, but instead was for law enforcement purposes. The district court concluded, “I am going to conditionally allow Ms. Pike to testify, and I will make my ultimate decision once I hear from her what was really going on and how she really got involved in this case.” The district court ultimately overruled the hearsay objection.

Counts 7 and 8: The testimony the Government elicited from N.S. and C.B. with respect to these charges was apparently insufficient to prove these counts, because at the conclusion of the Government's case-in-chief, Counts 7 and 8 of the Superseding Information were dismissed on the Government's motion.

JDT called Alfredo Guevara, MD, a board-certified urologist, who testified that he performed a complete examination of JDT, and JDT's lab tests revealed “[z]ero level of testosterone”—meaning an undetectable level of testosterone—in JDT's bloodstream. The Government called Dale Woolridge, MD, an associate professor of pediatrics and emergency medicine at the University of Arizona. Both doctors testified that it was possible for prepubescent boys to get an erection.

In Dr. Guevara's view, the “erections of a child that ... has not gone through puberty can only occur as a reflex.” When asked if it was impossible for a reflex erection to be used for sexual activity, he testified, “I don't think so. In order for one to perform a sexual act, a reflex erection has to be maintained. And by nature, ... a reflex erection is...