United States v. Jdt, Juvenile Male

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10005 Plaintiff-Appellee, D.C. No. v. 4:11-cr-00435-

RCC-DTF-

JDT, JUVENILE MALE,

Defendant-Appellant. OPINION

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

Argued and Submitted September 11, 2013—San Francisco, California

Filed August 12, 2014

Before: Arthur L. Alarcón and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Alarcón; Concurrence by Judge Berzon

* The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. SUMMARY**

Criminal Law

The panel vacated the district court’s adjudication of juvenile delinquency on six counts of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(c), remanded for consideration of all disposition options, including a suspension of delinquency, and affirmed in all other respects.

The panel held that the district court had jurisdiction over the…

Opinion by Judge ALARCÓN.

Concurrence by Judge BERZON.

OPINION

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 Huachu-ca, 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…

concurring:

J.D.T. was a ten-year-old child when the acts for which he was adjudicated occurred. He was prepubescent and developmentally delayed. The district court acknowledged at sentencing that even then, a year after the offenses occurred, J.D.T. was “closer to seven or eight with his mental status.” The statute under which he was declared a juvenile delinquent, 18 U.S.C. § 2241 (c), makes illegal certain acts, considered inherently sexual in nature if committed by a physically mature individual, without regard to sexual motivation or intent, and regardless of whether the defendant used force or threats to accomplish the act.

I concur in the majority opinion with regard to jurisdiction, sufficiency of the evidence, and the evidentiary issue. I also concur in the decision to remand with respect to the delinquency finding, but unlike the majority, I believe there is only one proper outcome to that issue on remand. J.D.T. should not have been treated as a delinquent given his age, the dire possible consequences for his future in light of the recent proliferation of sexual offender registration statutes, and the lack of prosecu-torial guidance provided by § 2241(c) as applied to…