United States v. John Doe

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: 1 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 2 On the night of…

This appeal from a delinquency determination raises questions concerning the scope and meaning of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 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. § 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…

concurring:

I concur in the majority’s view that the government’s conduct violated this juvenile’s statutory rights. I write separately to emphasize first that the violations were so egregious that we could easily conclude that Doe was prejudiced without a remand for further fact finding, and second that the proper remedy for such misconduct is dismissal of the charges against the juvenile?

In this ease, a fifteen year old boy, clearly in his minority, was detained for 36 hours by the Border Patrol in flagrant violation of his statutory rights to notification of his parents, guardian or custodian and of his right to arraignment within a reasonable period of time. 18 U.S.C. § 5033 . The inherently confusing bureaucratic procedures to which the youngster was subjected compounded the seriousness of these statutory violations. Presented with a variety of forms, Doe early requested the stated option of voluntary departure. After having done so, but without being granted the option of voluntary departure, he was prevailed upon to make incriminating statements about his role in the border crossing incident. Only then was he informed, belatedly, that he would be subject to criminal…

concurring and dissenting:

I concur in all but section C of the majority opinion. I write separately because I believe that the record demonstrates that Doe suffered no prejudice. We need not, therefore, remand this case to the district *783 court. Doe’s conviction should be affirmed.

The majority suggests that the record contains insufficient information to decide whether the government’s statutory violations prejudiced Doe. Maj. op. at 781. It is suggested that the government’s failure to notify Doe’s parents or consulate of his custody, and its delay in forwarding him to the prosecution unit, may have caused his post-arrest confessions and his prosecution itself. I believe that the record indicates otherwise.

After his arrest, Doe confessed details of the illegal immigration scheme, including his role as driver, to the Immigration and Naturalization Service (INS). Before trial, however, the government agreed not to use these post-arrest statements during its case-in-chief. It was Doe’s counsel who, during cross-examination of an INS agent, elicited damaging testimony describing Doe’s post-arrest confession. Doe’s counsel failed to interrupt or limit this damaging testimony,…