United States v. Francisco Gonzalez-Cervantes, United States of America v. John Doe

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. 1 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…

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.

*1075 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…

concurring.

I concur in the result and in Parts III and IV of the memorandum. I do not disagree with the analysis in Part II of the memorandum, but I find it to be entirely unnecessary and to carry with it the implication that the jurisdiction of a magistrate is *1079 something separate and distinct from the jurisdiction of the district court.

Both of these criminal prosecutions were initiated by criminal complaints, one charging a misdemeanor and the other charging an act of juvenile delinquency, which were filed with a United States Magistrate for the Southern District of California pursuant to Rule 3 Fed.R.Cr.P. Subsequently, in each case, an Information was filed in the United States District Court for the Southern District of California charging each appellant with an act of juvenile delinquency pursuant to 18 U.S.C. § 5032 .

The seminal issue involved is whether the Congress when it enacted and amended the Magistrates Act and the Supreme Court when it adopted and amended the Magistrates Rules of Procedure intended to grant to litigants a right to insist that proceedings be held before a magistrate rather than a district judge. To put it another way, does a magistrate have…

concurring:

I concur in the result reached by Judge Alarcon and agree with sections III and IV of his opinion. I do not believe, however, that it is necessary in this case to determine whether one charged with being a juvenile delinquent, who consents to a trial before a magistrate, has an absolute right to a trial or to enter a plea before the magistrate rather than the district court.

The only advantage to a defendant in being tried before a magistrate or in entering a plea before a magistrate, rather than a district court judge, is that a magistrate cannot impose a sentence of imprisonment. See 18 U.S.C. § 3401 (h). Because jail sentences were not imposed in these cases, we need not reach the question of Magistrates Rule 2(c)’s applicability to juvenile proceedings.

I also agree with Judge Thompson that a magistrate serves as an adjunct of the district court. Accordingly, we are not confronted with a jurisdictional issue because cases come within a district court’s jurisdiction regardless of whether they are tried by a magistrate or a district court judge.