FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50107 Plaintiff-Appellee,

D.C. No.

v.  CR-06-02713-JAH

JUVENILE MALE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

August 9, 2007—Pasadena, California

Filed June 12, 2008

Before: Marsha S. Berzon and Sandra S. Ikuta,

Circuit Judges, and James K. Singleton,*

Chief District Judge.

Per Curiam Opinion;

Partial Concurrence and Partial Dissent by Judge Berzon

*The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

6673
COUNSEL

Leila W. Morgan, Deputy Federal Defender, San Diego, California, for the petitioner. 

Christopher P. Tenorio, Assistant United States Attorney, San

Diego, California, for the respondent.

OPINION

PER CURIAM: 

R.P., a male juvenile, appeals from a proceeding in which

he was found to be a juvenile delinquent based on violations

of 8 U.S.C. § 1324(a)(1)(A)(ii) (transporting illegal aliens in

the United States) and § 1324(a)(2)(B)(ii) (bringing illegal

aliens to the United States for “commercial advantage or private financial gain”). He contends that the juvenile information should have been dismissed because the government

UNITED STATES v. JUVENILE MALE 6677
violated certain provisions of the Juvenile Justice and Delinquency Prevention Act of 1974, Pub.L. No. 93-415, 88 Stat.

1109, 1133-38 (codified at 18 U.S.C. §§ 5031-5042), (“JDA”)

with regard to the institution of proceedings against him in

federal court, his interrogation and arraignment, and the timeliness of his trial. He also appeals from the district court’s

judgment on the § 1324(a)(2)(B)(ii) counts, maintaining that

there was insufficient evidence that he obtained or aided

another in obtaining “commercial advantage or private financial gain.” Because we conclude that § 5033 of the JDA was

violated, we remand to the district court to consider whether

the violations were a cause of R.P.’s confession. 

BACKGROUND

I. Statutory Protections for Arrested Juveniles. 

Under the Juvenile Delinquency Act, juveniles are entitled

to distinct procedural protections with regard to interrogation

and arraignment, the speed with which they are brought to

trial, and the institution of delinquency proceedings against

them in federal court. Upon the arrest of a juvenile, the arresting officer must “immediately advise [the] juvenile of his

legal rights, in language [that is] comprehensi[ble] to a juvenile.” 18 U.S.C. § 5033. The arresting officer must also “notify the parents, guardian or custodian of the rights of the

juvenile,” and the juvenile must “be taken before a magistrate

judge forthwith.” Id. 

Before instituting delinquency proceedings in federal court,

the “Attorney General” must “certif[y] to the appropriate district court” that one of three conditions exists: “the juvenile

court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction”; “the State does not

have available programs and services” for juveniles; or “the

offense charged is a crime of violence” or a specified drugrelated felony. Id. § 5032. The Attorney General must also

certify that “there is a substantial Federal interest in the case

6678 UNITED STATES v. JUVENILE MALE
or the offense to warrant the exercise of Federal jurisdiction.”

Id. 

Lastly, a juvenile who is detained pending trial must be

“brought to trial within thirty days from the date upon which

such detention was begun,” unless “additional delay was

caused by the juvenile or his counsel, consented to by the

juvenile and his counsel, or would be in the interest of justice

in the particular case.” Id. § 5036. 

II. November 19, 2006 Arrest.

R.P. was arrested by federal border patrol agents on

November 19, 2006, at approximately 5:00 p.m. on suspicion

of smuggling aliens into the United States. R.P. and the other

occupants of the blue Dodge Ram in which he was traveling

were then transported to the Calexico Border Patrol Station.

At the station, Border Patrol Agent Jesus Salazar asked R.P.

his birth date. R.P. stated that he was born on January 18,

1988, making him 18 years old. Agent Salazar was informed

by his dispatcher, however, that DHS records1 showed a number of earlier arrests for R.P., and that the birth dates given on

at least two of those occasions would make R.P. a juvenile on

the day of this latest border-crossing. Neither Agent Salazar

nor any of the other border patrol officers attempted to notify

the Mexican Consulate or R.P.’s parents of R.P.’s arrest. 

Sometime after 12 a.m., Agent Salazar advised R.P. of his

Miranda rights and began a videotaped interview. In the interview, R.P. stated that he was a citizen of Mexico and that he

had no documents allowing him to legally enter or remain in

the United States; that he met a smuggler in the Mexican city

of Mexicali who offered to smuggle him into the United

States for $1900; and that he later agreed to drive a vehicle

1DHS “maintains information on every INS apprehension.” United

States v. Parga-Rosas, 238 F.3d 1209, 1211 (9th Cir. 2001). 

UNITED STATES v. JUVENILE MALE 6679
carrying illegal immigrants into the United States in exchange

for a reduction of his smuggling fee to $500. 

III. Proceedings Before the Magistrate Judge.

R.P. challenges the timeliness of his trial under the speedy

trial provision of the JDA, 18 U.S.C. § 5036. We therefore lay

out the course of the district court proceedings in some detail.

On November 21, 2006, at least 36 hours after his arrest on

November 19, 2006, R.P. was arraigned on a complaint

charging him with illegal transportation of aliens in violation

of 8 U.S.C. § 1324. At the arraignment, appointed defense

counsel informed the court that “[defendant] is a minor, that

he’s 17 years old, and that just about 20 days ago he was actually turned over to the Mexican consulate in San Luis and

then taken to the Mexican authorities as a juvenile.” Defense

counsel presented no documents at that time to confirm R.P.’s

age. The magistrate judge set a hearing date on the matter of

R.P.’s juvenile status for December 1. 

At the start of the December 1 hearing, defense counsel

requested a continuance because the Mexican consulate had

not yet interviewed R.P. The magistrate judge set the hearing

for December 5, and indicated to defense counsel that evidence “that [R.P.] was previously removed as a juvenile”

would likely not be sufficient to convince him that R.P. was

a juvenile. However, the magistrate judge stated that verifying

documents and testimony from the Mexican Consulate as to

their authenticity would “lend[ ] a lot more credibility” to

R.P.’s claim that he was a juvenile. 

At the December 5 hearing, defense counsel stated that she

had obtained faxed copies of R.P.’s birth certificate and the

birth certificate of his mother by contacting R.P.’s mother in

Mexico. Defense counsel also represented that a defense

investigator was prepared to testify that he had contacted

R.P.’s mother and obtained copies of the documents. The

6680 UNITED STATES v. JUVENILE MALE
court informed defense counsel that “I’ll just give you a tentative [ruling] that the birth certificate alone is not going to satisfy the Court without some other testimony,” and that a faxed

birth certificate “with the testimony that somebody spoke to

somebody on the telephone” was not “going to suffice.” The

court decided to “give both sides [time] to prepare their

cases,” and set the hearing for December 11. 

At the December 11 evidentiary hearing, R.P.’s fourth

appearance before the magistrate judge, defense counsel

informed the court that “the hearing obviously can’t go forward at this time,” because the Mexican consulate had not

“yet received the birth certificate or other documentation,”

and no consular officer was available to testify. The magistrate judge then set the hearing for December 20, but noted

that “that’s going to be 30 days out,” and stated “I do think

there is a certain urgency that should be given this proceeding

since it is age-determinative in how [R.P.] is treated.” 

When the hearing reconvened on December 20 the magistrate judge informed counsel that R.P. was not present

because he had been transferred to San Diego. Defense counsel stated that she had with her R.P.’s birth certificate and a

Mexican consular official who was prepared to testify, and

that R.P.’s mother was on standby over the phone. Defense

counsel also indicated that she wished to waive R.P.’s appearance. The government objected to the waiver, and the court

refused to waive R.P.’s appearance, instead setting a hearing

date for December 26. 

Defense counsel and the magistrate judge then proceeded

to discuss which party bears the burden of demonstrating

juvenile status and what type of proof would suffice to demonstrate that R.P. was a juvenile. The magistrate judge indicated that it is “the [d]efense burden to prove that this

individual is a juvenile,” because he “identified himself originally” as an adult, and further stated “there’s a presumption

that he’s an adult.” The magistrate judge did not say precisely

UNITED STATES v. JUVENILE MALE 6681
what the defense burden was, but informed defense counsel,

“[y]ou’re going to have to . . . convince me,” and that a birth

certificate “in itself would not be sufficient” because “you can

get anything in Mexico that you want to pay for.” He would

consider it “pretty good evidence,” however, if someone from

the Mexican consulate testified as to the birth certificate’s

authenticity. 

The evidentiary hearing on R.P.’s juvenile status was

finally conducted on December 26. The magistrate judge

opened the hearing by telling the government “I think you

have the initial burden.” The government presented the testimony of Agent Salazar, who identified R.P. and testified that

R.P. had provided a birth date of January 18, 1988 at the time

of his arrest. When he was asked by government counsel

whether he had received additional information from his dispatcher regarding other arrests for R.P., Agent Salazar maintained that the birth dates R.P. had given upon his other

arrests were “consistent” with the birth date R.P. provided to

him. After Agent Salazar’s testimony, the magistrate judge

stated “I think the burden has shifted to the [d]efense now.”

The defense then called the Mexican consular official, who

testified that he had contacted R.P.’s mother in Mexico and

that she had provided an original copy of his birth certificate

indicating his date of birth as January 1, 1989, as well as a

residence letter from their county of residence. The consular

official testified that, based on this evidence, he believed that

R.P. was a minor. He also noted that R.P. had been returned

as a juvenile to Mexico in October, 2006 through the Mexican

consulate in Yuma, Arizona. The magistrate judge then found,

based on the “credible evidence” provided by the defense, that

R.P. was a juvenile. 

The government filed a juvenile information the next day,

alleging that R.P. had committed acts of juvenile delinquency.

Counts One, Three, and Five of the information alleged violations of 8 U.S.C. § 1324(a)(2)(B)(ii),2

 including aiding and

2

8 U.S.C. § 1324(a)(2)(B)(ii) provides that: 

Any person who, knowing or in reckless disregard of the fact

6682 UNITED STATES v. JUVENILE MALE
abetting that crime; Counts Two, Four, and Six alleged violations of 8 U.S.C. § 1324(a)(1)(A)(ii),3

 including aiding and

abetting that crime. 

The same day, the government filed two additional documents. The first document, titled “Certification” and signed

by United States Attorney Carol C. Lam, states that “the juvenile court of the State of California does not have jurisdiction

over the above-referenced juvenile defendant” and “that there

is a substantial federal interest in the case to warrant the exercise of federal jurisdiction.” The second document, which is

not dated, is entitled “Juvenile Delinquency Certification” and

is signed by John Weis, an Assistant U.S. Attorney. On the

document, a box has been checked next to the statement

“Contacted Joseph Beard, Assistant District Attorney, Imperial County State Juvenile Court, who declined prosecution.”

IV. Pre-Trial Proceedings Before the District Court. 

At the first motion hearing before the district court on January 4, 2007, R.P. moved to dismiss the information on the

ground that he had been detained for more than thirty days

without being brought to trial, in violation of 18 U.S.C.

§ 5036. The court held that the speedy trial clock begins to

that an alien has not received prior official authorization to come

to, enter, or reside in the United States, brings to or attempts to

bring to the United States in any manner whatsoever, such alien

. . . shall . . . in the case of . . . an offense done for the purpose

of commercial advantage or private financial gain . . . be fined

under Title 18 and shall be imprisoned . . . . 

3

8 U.S.C. § 1324(a)(1)(A)(ii) provides that: 

Any person who . . . knowing or in reckless disregard of the

fact that an alien has come to, entered, or remains in the United

States in violation of law, transports, or moves or attempts to

transport or move such alien within the United States by means

of transportation or otherwise, in furtherance of such violation of

law . . . shall be punished as provided in subparagraph (B). 

UNITED STATES v. JUVENILE MALE 6683
run from the time a defendant is determined to be a juvenile

by the court, not when the court is first put on notice that

defendant may be a juvenile, and that there therefore was no

violation of § 5036. The court then set a hearing on pre-trial

motions for January 8. 

On January 8, defense counsel filed motions to dismiss the

information for failure to provide a proper juvenile certification under 18 U.S.C. § 5032; to suppress R.P.’s statements as

the fruit of the government’s failure to comply with 18 U.S.C.

§ 5033; and to dismiss the information for failure to comply

with § 5033. The defense also renewed its motion to dismiss

the information for failure to comply with the speedy trial

provision of 18 U.S.C. § 5036. Both defense counsel and the

government requested additional time to respond to motions

and prepare for trial, and the court set a trial date of January

18, 2007. At the pre-trial hearing on January 18, the court

addressed defense counsel’s motions and held that there was

no violation of § 5033, the JDA provision regarding arrest and

interrogation of juveniles, that would require either suppression of R.P.’s statements or dismissal. The court concluded

that § 5033 “was not triggered at the time of arrest” because

R.P. “gave an adult date of birth.” The court again held that

there was no violation of the speedy trial provision of the

JDA, § 5036 but delayed ruling on the question whether certification was proper under § 5032. 

V. Trial.

At trial, the government presented testimony from border

patrol agents and from aliens who were passengers in the blue

Dodge Ram. Two of the Border Patrol Agents who participated in R.P.’s arrest identified R.P. as the driver of a blue

Dodge Ram that was pulled over on November 19, 2006 with

illegal aliens inside, and testified that he attempted to evade

border patrol officers, first by swerving into oncoming traffic

and later by running from the vehicle after it came to a stop.

In addition, Agent Salazar testified that, after R.P. was trans6684 UNITED STATES v. JUVENILE MALE
ported to the Calexico Border Patrol station, he took R.P.’s

biographical information and found that he had six previous

arrests, during some of which he had given birth dates that

would indicate that he was a juvenile on November 19, 2006.

Agent Salazar also testified to the contents of R.P.’s statement. 

Material witnesses Neftali Sanchez-Moreno, Javier Tomas

Hernandez-Alvarez, and Javier Peralta-Mendoza testified

about their transportation to the United States. SanchezMoreno and Hernandez-Alvarez both testified that they

agreed to pay a smuggler $1500-2000, and that they followed

the smuggler’s instructions to travel from Mexicali to Algodones and to then set out walking on a road, at which point

they were picked up by a blue truck. Peralta-Mendoza testified that he traveled to Mexicali with his brother, where they

waited in a hotel until a man came and met them and gave his

brother instructions. He and his brother then took a bus to

Algodones, and from there walked into the desert where a

blue truck picked them up. Peralta-Mendoza testified that his

father was going to pay for him to be smuggled into the

United States. 

After the government rested, defense counsel moved for

acquittal under Federal Rule of Criminal Procedure 29(a) on

Counts One, Three, and Five, arguing that the government

failed to provide sufficient evidence of an intent to receive

“financial gain,” and also renewed the motion to suppress

R.P.’s statement as obtained in violation of § 5033. The court

denied the motion to suppress, holding that “the defendant

was properly advised of his rights per Miranda as an adult,”

and denied the Rule 29 motion. The district court next

addressed the motion to dismiss due to faulty certification

under § 5032. The court held that the certification complied

with § 5032 because the attached document signed by an

Assistant U.S. Attorney was essentially a “declaration” indicating that the U.S. Attorney’s office had conducted the

investigation required by the statute. 

UNITED STATES v. JUVENILE MALE 6685
Pronouncing its judgment, the district court held that R.P.

was a juvenile delinquent with respect to all counts. With

respect to Counts Two, Four, and Six the court found that

R.P. knowingly drove a vehicle of undocumented aliens into

the United States. Regarding Counts One, Three, and Five,

the court further found that R.P. agreed to drive the vehicle

to reduce his smuggling fee, and that this reduction constituted financial gain. The court also inferred from the evidence

that R.P. knew that the other occupants of the vehicle were

paying a smuggler. The court subsequently sentenced R.P. to

ten and one-half months imprisonment and a term of supervised release that expires on his twenty-first birthday.

ANALYSIS

I. Certification Provision of the Juvenile Delinquency

Act (18 U.S.C. § 5032). 

[1] R.P. argues that the government did not properly certify

the case as required by 18 U.S.C. § 5032,4 because the certification signed by the U.S. Attorney inaccurately stated that the

California state court did not have jurisdiction over the juvenile for the crime at issue, rather than that it had declined

jurisdiction. The statute indicates that, in a case in which federal court jurisdiction is premised on a lack of state court

jurisdiction, the U.S. Attorney must certify one of two things:

4

18 U.S.C. § 5032 provides, in relevant 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 the appropriate district court of the United States that

(1) the juvenile court or other appropriate court of a State does

not have jurisdiction or refuses to assume jurisdiction over said

juvenile with respect to such alleged act of juvenile delinquency,

(2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a

crime of violence that is a felony or an offense described in [certain federal statutes]. 

6686 UNITED STATES v. JUVENILE MALE
(1) that the state court does not have jurisdiction, or (2) that

the state court has refused jurisdiction. Id. § 5032. The certification cannot be signed by an assistant U.S. Attorney, only by

the U.S. Attorney herself. See United States v. Doe, 98 F.3d

459, 460-61 (9th Cir. 1996). 

In this case, the U.S. Attorney submitted a signed certification stating that “the juvenile court of the State of California

does not have jurisdiction over [R.P.] with respect to the

charged offenses of Bringing in Illegal Aliens for Financial

Gain under [8 U.S.C. 1324(a)(2)(B)(ii), and aiding and abetting that crime], Transportation of Illegal Aliens under [8

U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) and aiding and abetting

that crime].” Also submitted, apparently on the same day, was

a second, undated form, signed by an Assistant United States

Attorney and entitled “Juvenile Delinquency Certification,”

on which a check-mark is placed next to the typed statement:

“Contacted Joseph Beard, Assistant District Attorney, Imperial County State Juvenile Court, who declined prosecution.”

We conclude that there was no violation of § 5032 because

the state court did not have jurisdiction over R.P. within the

meaning of the statute. 

[2] The government and R.P. have both assumed that,

because the district attorney in fact “declined prosecution,” a

substantively accurate certification would have indicated that

the state court had refused jurisdiction, not, as the certification

stated in this case, that the state court did not have jurisdiction. According to R.P., this substantive inaccuracy in the certification rendered it invalid and deprived the district court of

jurisdiction.5 But both parties have failed to note that the statute states as its second alternative that the state court, not the

5The government and R.P. disagree as to whether a substantive inaccuracy in a certification that is otherwise valid on its face deprives the district court of jurisdiction. As we ultimately conclude that the certification

was not inaccurate, we need not decide whether inaccuracy of a § 5032

certification would be grounds for relief. 

UNITED STATES v. JUVENILE MALE 6687
state prosecutor, has refused jurisdiction. 18 U.S.C. § 5032.

When a state prosecutor declines to initiate proceedings

against a juvenile in a state court, the state court never obtains

jurisdiction over the particular juvenile and has no occasion

to refuse it.6

Our point is not that a federal prosecutor could comply with

the statute simply by acting more quickly to initiate proceedings in federal court than a state prosecutor who does intend

to initiate proceedings in state court. Congress clearly

intended to ensure that juveniles be kept “away from the less

appropriate federal channels” except in those instances where

juveniles “would not fall under a state plan” to exercise jurisdiction. United States v. Juvenile Male, 864 F.2d 641, 644

(9th Cir. 1988) (emphasis added). It did not intend for federal

court jurisdiction to lie simply because a federal prosecutor

made it to the courthouse door before the district attorney

could act on his intent to prosecute. But when a state court’s

lack of jurisdiction “over [a] juvenile with respect to [an]

alleged act of juvenile delinquency,” § 5032, is not merely

temporary but, instead, is based on an affirmative state prosecutorial decision not to invoke the jurisdiction of the state

court with respect to that crime, the state court “does not have

jurisdiction” within the meaning of § 5032. 

[3] Here, the state prosecutor affirmatively declined to initiate a prosecution. The Assistant United States Attorney’s

statement so states, and, while it cannot serve as the statutorily required certification, it is undisputed evidence of the

truth of the United States Attorney’s certification. We there6We assume, for purposes of our analysis, that, had a prosecution been

brought, a California state court could have exercised jurisdiction over

R.P. under California Welfare & Institutions Code § 602(a), which provides that “any person who is under the age of 18 years when he or she

violates any law of this state or of the United States . . . is within the jurisdiction of the juvenile court.” (Emphasis added). See also In re Kasaundra

D., 16 Cal. Rptr. 3d 920, 924 (Cal. Ct. App. 2004). But that fact is irrelevant, because no state court prosecution of R.P. was initiated. 

6688 UNITED STATES v. JUVENILE MALE
fore affirm the district court’s refusal to dismiss the juvenile

information for failure to comply with § 5032. 

II. The Speedy Trial Provision of the Juvenile

Delinquency Act (18 U.S.C. § 5036).

[4] R.P. also alleges a violation of the speedy trial provision

of the JDA, 18 U.S.C. § 5036, which requires trial of detained

juveniles within 30 days of the start of their detention, absent

certain exceptions. We hold that there was no violation of the

JDA’s speedy trial provision because R.P. caused the delay in

the start of his trial by lying about his age. 

[5] It is now established that the speedy trial clock “begins

to run at the commencement of federal detention of the juvenile on the federal delinquency charge.” United States v. Doe,

366 F.3d 1069, 1070 (9th Cir. 2004) (en banc) (“Doe I”). Doe

I also specifies that the detention must be “on the charge of

alleged delinquency,” so that “unrelated federal detention”

does not cause the clock to run “before federal authorities

became aware of the facts giving rise to a charge of delinquency.” Id. at 1074. 

The government and R.P. disagree about when the relevant

“federal detention” began for purposes of the speedy trial

clock. The government argues that the district court correctly

held that the speedy trial clock only begins to run once a

determination has been made that an individual is a juvenile,

because it is only at that point that the juvenile becomes an

“alleged delinquent.” R.P. contends instead that the clock

begins to run from the moment federal detention begins on the

underlying acts that form the basis for the juvenile delinquency charge. Doe I did not address whether “unrelated federal detention” includes, as the government contends,

detention as an adult for the same underlying act, or whether

an ultimate determination that an individual is a juvenile is

one of the “facts giving rise to a charge of delinquency” that

must occur before the speedy trial clock begins to run. Id. at

UNITED STATES v. JUVENILE MALE 6689
1074 (citing United States v. Juvenile Male, 74 F.3d 526, 528-

29 (4th Cir. 1996) (holding that federal immigration detention

prior to being charged with an act of delinquency did not start

the speedy trial clock)). We need not resolve these questions,

however, because even if the clock began to run at the

moment R.P. was first taken into custody on November 19,

there was no violation of the Act. 

[6] The JDA speedy trial provision excludes from the 30-

day limit delay that is (1) “caused by the juvenile or his counsel,” (2) “consented to by the juvenile and his counsel,” or (3)

“in the interest of justice in the particular case.” 18 U.S.C.

§ 5036. We have held that delays occasioned by motions of

defense counsel are “caused by the juvenile or his counsel.”

See United States v. Baker, 10 F.3d 1374, 1397 (9th Cir.

1993), overruled on other grounds by United States v.

Nordby, 225 F.3d 1053 (9th Cir. 2000). 

[7] One of our sister circuits has held that delay occasioned

in part by a juvenile lying about his age is excludable as either

consented to or caused by the juvenile. In United States v.

Romulus, 949 F.2d 713 (4th Cir. 1991), the actual date on

which the juvenile was taken into federal custody was

unclear, but he was brought before a magistrate judge on July

2, 1990, at which time he provided a false birth date and a

false name. Id. at 714-15. Only on July 3, 1990 did the government determine his true name and age. Id. at 715. The

Fourth Circuit held that “because the government was

unaware that Romulus was a juvenile until July 3, 1990 . . .

any period of time prior to July 3 was properly excluded as

delay caused by the juvenile.” Id. at 716. See also United

States v. Doe, 49 F.3d 859, 866 (2d Cir. 1995) (excusing a

delay was in the interest of justice where “Doe’s misrepresentations as to his age and identity, defense counsel’s tactical

delay . . . , and his extending that delay beyond 30 days in

hopes of gaining a dismissal with prejudice” were the cause).

[8] This case is slightly different from Romulus, because

the government — here, Agent Salazar — was on notice from

6690 UNITED STATES v. JUVENILE MALE
the DHS records that R.P. might be a juvenile. Still, in this

case, as in Romulus, R.P. created the need for proceedings to

determine his juvenile status by lying about his age. Thus, the

time spent in determining R.P.’s age is excludable as delay

caused by the juvenile. 

Applying these principles to this case, there was no JDA

speedy trial violation once the excludable time is removed.

R.P. was arrested on November 19, 2006 and placed in federal custody. His trial began on January 18, 2007, 60 days

after he was arrested. The period from January 8-18 is excludable as caused by the juvenile or his counsel, because it was

brought about by the filing of pre-trial motions by the

defense. The period from November 21, when defense counsel first provided notice to the court of R.P.’s alleged juvenile

status, to December 20, when defense counsel first appeared

with an original copy of R.P.’s birth certificate and a witness

from the consulate, is also excludable, as delay caused by the

juvenile. The passage of time was necessary to make a determination of R.P.’s juvenile status, and the need for that determination resulted from his false response when first asked his

date of birth.7

R.P. argues that it took until December 26 to determine that

he was a juvenile only because the judge inappropriately put

the burden of proof on him to show that he was a juvenile and

refused to consider an uncertified birth certificate from Mexico. As a result, the defense argues, no portion of the time

from December 5, when a copy of the birth certificate was

first proffered, to December 26, when R.P. was finally determined to be a juvenile, should be excluded. 

7The District Court may have erred in refusing to waive R.P.’s appearance at the December 20 hearing, making the delay from December 20-26

not excludable. That period does not matter, however, because even if it

is not excluded, it is insufficient to make the period of delay not caused

by R.P. greater than 30 days. We therefore assume for purposes of our

analysis that the time is not excludable. 

UNITED STATES v. JUVENILE MALE 6691
[9] The record shows, however, that no delay was caused

by a failure correctly to apply the burden of proof. There is

a paucity of cases addressing the appropriate allocation of the

burdens and standard of proof in a hearing to determine juvenile status, and the statute itself is silent on the question. Having reviewed the available cases from other circuits and the

district courts, we are persuaded that the government bears the

initial burden of proving defendant’s age and “must offer

prima facie evidence of defendant’s adult status.” United

States v. Salgado-Ocampo, 50 F. Supp. 2d 908, 909 (D. Minn.

1999). We also conclude that, as has been suggested by the

Second Circuit, a previous statement from the juvenile that he

is an adult can constitute such prima facie evidence. See

United States v. Alvarez-Porras, 643 F.2d 54, 66-67 (2d Cir.

1981). The burden then shifts to the defense to “come forward

with evidence of his juvenile status,” and the government then

has an opportunity “to rebut with any additional information.”

See Salgado-Ocampo, 50 F. Supp. 2d at 909. 

[10] Here, the magistrate judge correctly applied these burdens. At the ultimate hearing on December 26, the court

appropriately required the government to present prima facie

evidence of R.P.’s age, and appropriately treated R.P.’s own

previous statements as such evidence. Only then did the judge

require that R.P. come forward with proof to rebut that presumption. Similarly, the requirement imposed by the judge at

earlier hearings that R.P. come forward with evidence was

simply an appropriate application of the shifting burdens. 

R.P. further argues that, even if his statements constituted

prima facie evidence of his adult status so as to shift the burden to the defense, the defense presented sufficient evidence

of juvenile status by December 5, so that the time from

December 5 through December 26 is excludable. He argues,

in particular, that the copied birth certificate should have been

admissible, without authentication through consular testimony. The question, however, is not the admissibility of the

birth certificate but rather the weight to be accorded it. The

6692 UNITED STATES v. JUVENILE MALE
magistrate judge was not compelled to find that the copied,

unauthenticated birth certificate was sufficient to show that

R.P. was a juvenile. 

[11] We conclude that the time from January 8 through 18

and from November 21 through December 20 is excludable.

As a result, the government was responsible for only 21 days

of the delay in bringing R.P. to trial as a juvenile. We therefore affirm the district court’s refusal to dismiss the information for failure to comply with § 5036.8

III. Warning, Notification, and Arraignment

Requirements of the JDA (18 U.S.C. § 5033).

R.P. alleges that the district court erred in failing to suppress his statements or dismiss the information despite the

government’s failure to comply with § 5033. He argues that

when an arresting officer is aware of conflicting information

about an arrestee’s age, the officer is obligated to comply with

the requirements of § 5033. The government argues, in contrast, that it is not obligated to comply with those requirements when, as happened here, the juvenile indicates that he

is an adult. 

We agree with R.P. that the government was obligated to

8We note with some concern that Agent Salazar’s testimony before the

magistrate judge in the pretrial proceedings was seriously misleading as to

whether R.P. had ever provided juvenile birth dates in the past. Agent

Salazar testified in the pretrial proceedings that the information he

received from DHS records was “consistent” with the adult birth date that

R.P. provided on November 19, 2006. He did not indicate until trial that

some of the birth dates previously provided by R.P. would have made him

a juvenile. 

Agent Salazar’s misleading testimony, however, did not lead to a delay

in R.P.’s trial. Salazar testified for the first time on December 26, 2006,

at which time the magistrate judge found that R.P. was a juvenile. The

delay prior to December 26, 2006 was thus caused by R.P.’s provision of

an adult birth date, not by the misleading testimony of Agent Salazar. 

UNITED STATES v. JUVENILE MALE 6693
comply with the requirements of the JDA, but for a somewhat

different reason. We conclude that under the plain language

of the statute, the determinative factor in the application of

§ 5033 is whether the arrestee is in fact a juvenile, regardless

of whether he indicates that he is an adult. Because R.P. was,

as the district court ultimately determined, a juvenile at the

time of his arrest, he was entitled to the protections of § 5033.

[12] “In interpreting a statute, we look first to [its] plain

language.” United States v. Mohrbacher, 182 F.3d 1041, 1048

(9th Cir. 1999) (quoting Nw. Forest Res. Council v. Glickman,

82 F.3d 825, 830 (9th Cir. 1996). Section 5033 provides that:

Whenever a juvenile is taken into custody for an

alleged act of juvenile delinquency, the arresting

officer shall immediately advise such juvenile of his

legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile’s parents, guardian, or

custodian of such custody. The arresting officer shall

also notify the parents, guardian, or custodian of the

rights of the juvenile and of the nature of the alleged

offense. 

The juvenile shall be taken before a magistrate judge

forthwith. In no event shall the juvenile be detained

for longer than a reasonable period of time before

being brought before a magistrate judge. 

Section 5033 begins “[w]henever a juvenile is taken into custody . . . .” (Emphasis added). On its face, then, the statute

does not allow for exceptions in situations in which an officer

has no reason to know of an individual’s juvenile status or in

which the juvenile lies about his age. Instead it requires that

its protections be provided “[w]henever a juvenile is taken

into custody.” 

A comparison of § 5033 to other provisions of the JDA

suggests that Congress did not intend § 5033 to contain an

6694 UNITED STATES v. JUVENILE MALE
exception for instances in which a juvenile lies about his age.

Section 5036 of the JDA specifically provides an exception

for instances in which delay “was caused by the juvenile or

his counsel,” while § 5033 contains no such language regarding failure to provide the protections of § 5033. Congress

could have included similar language in § 5033, excusing

compliance with the requirements of § 5033 when the juvenile himself hinders the government’s compliance, but it did

not. 

Nor is there any support in the language of the statute for

a requirement that the protections of § 5033 apply only when

an arresting officer reasonably should have known that an

arrestee was a juvenile. The United States Code contains

numerous civil and criminal provisions that are triggered only

when an individual or the government “reasonably should

have known” a particular fact. See, e.g., 18 U.S.C.

§ 983(e)(1)(A) (a person entitled to written notice in any civil

forfeiture proceeding may file a motion to set aside a declaration of forfeiture if “the [g]overnment knew, or reasonably

should have known, of the moving party’s interest and failed”

to provide notice); 26 U.S.C. § 4975(f)(11)(B)(ii) (an exemption for certain otherwise prohibited transactions is not available if the person knew “or reasonably should have known”

that the transaction was prohibited). Had Congress wished to

make the protections of § 5033 turn on whether the arresting

officer had reason to know that an individual was a juvenile,

it could have done so. The plain language of the statute thus

compels the conclusion that juveniles are entitled to the protections of § 5033 whenever they are taken into custody,

regardless of the information available to police officers about

the juvenile’s age. 

The use of the phrase “alleged act of juvenile delinquency”

does not change this conclusion. A “juvenile” by definition

can only be arrested for an “alleged act of juvenile delinquency”; the statute would be plainly inconsistent if it read

“[w]henever a juvenile is taken into custody for an alleged

UNITED STATES v. JUVENILE MALE 6695
[crime].” See 18 U.S.C. § 5031 (“ ‘[J]uvenile delinquency’ is

the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a

crime if committed by an adult . . . .”). Although a juvenile

may be transferred to adult court when certain requirements

are met and there convicted of a “crime,” such a transfer cannot occur prior to arrest or arraignment. See 18 U.S.C. § 5032

(delineating requirements and standard for transferring a juvenile to criminal prosecution). More importantly, the language

of the phrase does not require that the officer realize that the

arrestee is in custody for an “alleged act of juvenile delinquency” rather than a “crime.” Thus, “alleged act of juvenile

delinquency” does not introduce any ambiguity about whether

an arresting officer must know that an individual is a juvenile

before the statutory protections apply. 

“When we find the terms of a statute unambiguous, judicial

inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 190 (1991).

We may only reject the application of the statute as written if

it “will produce a result ‘demonstrably at odds with the intentions of its drafters.’ ” Id. at 190-91 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also

Middle Mountain Land & Produce, Inc. v. Sound Commodities, Inc., 307 F.3d 1220, 1223 (9th Cir. 2002). Not only is

there no evidence in this case that application of the unambiguous text of the statute will lead to a result in conflict with the

intentions of Congress, there are a number of reasons Congress might have concluded that precisely such a bright line

rule is preferable. 

[13] Congress did not indicate expressly in any of its

reports on the JDA its reason for adopting the language of

§ 5033. The legislative history of the JDA does, however,

reflect that Congress meant substantially to increase the procedural safeguards available to juveniles immediately after

their arrest. The JDA was intended, among other things, to

“provide basic procedural rights for juveniles who come

6696 UNITED STATES v. JUVENILE MALE
under Federal jurisdiction and to bring Federal procedures up

to the standards set by various model acts, many state codes

and court decisions.” S. Rep. No. 93-1011, reprinted in 1974

U.S.C.C.A.N. 5283, 5284. Congress’s purpose was thus to

“provide for the . . . constitutional safeguards fundamental to

our system of justice.” United States v. Female Juvenile, 377

F.3d 27, 36 n.18 (1st Cir. 2004) (quoting S. Rep. No. 93-

1011, reprinted in 1974 U.S.C.C.A.N. at 5312). As this purpose suggests, the Act was adopted in part in response to the

Supreme Court’s decision in In re Gault, 387 U.S. 1 (1967),

in which the Court emphasized that juvenile delinquency proceedings “must measure up to the essentials of due process

and fair treatment.” Id. at 30 (quoting Kent v. United States,

383 U.S. 541, 562 (1966)). See also United States v. Doe, 155

F.3d 1070, 1076 (9th Cir. 1998) (the 1974 JDA amendments

“were intended to guarantee certain basic procedural and constitutional protections to juveniles as required by Gault”)

(internal quotation marks omitted). Gault focused in particular

on police interrogation of juveniles, noting that “the greatest

care must be taken to assure that” any confessions obtained as

a result of interrogation are not the “product of ignorance of

rights or of adolescent fantasy, fright or despair.” 387 U.S. at

55.9 Strengthening procedural protections for juveniles before

and during interrogation was thus a key purpose of the Act.

Given this emphasis on strong procedural protections, there

are several reasons Congress might have believed that requiring the protections of § 5033 “[w]henever a juvenile is taken

into custody” is preferable to a rule allowing for exceptions

based on the information provided by the juvenile. As the

Supreme Court has repeatedly emphasized, a child is less

9A recent study of 200 known exonerations based upon DNA evidence

concludes that 31 cases involved false confessions, 12 (39%) of which

were made by juveniles. Out of the 200 known exonerations, 22 (11%)

involved juveniles. Thus, 12 out of 22 of the juveniles exonerated (55%)

had initially provided confessions that proved to be false. Brandon L.

Garett, Judging Innocence, 108 COLUM. L. REV. 55, 65, 89 (2008). 

UNITED STATES v. JUVENILE MALE 6697
capable than an adult of understanding the consequences and

seriousness of arrest and detention. A juvenile:

is unlikely to have any conception of what will confront him when he is made accessible only to the

police. That is to say, we deal with a person who is

not equal to the police in knowledge and understanding of the consequences of the questions and answers

being recorded and who is unable to know how to

protect his own interests or how to get the benefits

of his constitutional rights. 

Gallegos v. Colorado, 370 U.S. 49, 54 (1962); see Bellotti v.

Baird, 443 U.S. 622, 635 (1979) (noting that “minors often

lack the experience, perspective, and judgment to recognize

and avoid choices that could be detrimental to them”). The

likelihood that juveniles will not appreciate the significance of

detention underlies this circuit’s conclusion that a juvenile

cannot waive the protections of the JDA. See United States v.

L.M.K., 149 F.3d 1033, 1035 (9th Cir. 1998) (holding that

“the statute does not permit the juvenile to waive notification”); see also United States v. D.L., 453 F.3d 1115, 1123 n.6

(9th Cir. 2006) (noting, “because [the issue] is likely to recur,

that it is highly doubtful that a juvenile can waive consular

notification”). Congress could have believed that a juvenile

should also not be able to waive the JDA interrogation protections by lying about his age. The very premise of the JDA,

indeed, is that juveniles will often make choices — including

the choice to appear to be adults when they are not — that are

not in their own interest. 

Congress might also have concluded that the practical consequences of a rule that permits of no exceptions are more

desirable than the consequences of, for example, a rule that

would require courts to determine what information was

available to the arresting officer. The strict rule adopted by

Congress should, as a practical matter, induce arresting officers initially to treat an arrestee as a juvenile if there is some

6698 UNITED STATES v. JUVENILE MALE
basis for doing so — for example, the arrestee’s appearance,

information about past arrests, or some other indication. The

bright-line rule builds in the likelihood that arresting officers

will evaluate all the available information and, when in doubt,

treat the arrestee as a juvenile. The result would be a de facto

reasonable knowledge rule, while at the same time avoiding

difficult post-hoc judicial line drawing concerning whether or

not a sufficient quantity of evidence existed to trigger juvenile

protections. 

Finally, Congress may have concluded that compliance

with the requirements of § 5033 is an effective way to determine quickly whether an individual is in fact a juvenile.

Prompt notification of an individual’s parents and, if relevant,

the consulate should immediately reveal information confirming or refuting the individual’s juvenile status. And bringing

the individual before a magistrate judge promptly will allow

the judge to make a determination as to juvenile status as

quickly as possible. Here, several hearings and the speedy

trial dispute might well have been avoided had the arresting

officers, faced with conflicting information as to R.P.’s age,

informed his mother or the Mexican Consulate of his arrest.

[14] Our discussion of the legislative history and identification of sensible justifications for the statute’s clearly stated

rule shows that this is not “one of those rare cases” when

application of the plain language of the statute is “demonstrably at odds with the intentions of its drafters.” See Demarest,

498 U.S. at 190. There is no evidence in the legislative history

that Congress did not intend the protections of § 5033 to

apply “[w]henever a juvenile is taken into custody,” nor is the

result of application of the statute’s unambiguous text “so

bizarre that Congress could not have intended it.” Id. at 191

(internal quotation marks omitted).10

10In adopting the bright-line rule, we recognize that a juvenile could theoretically be encouraged to lie about his age in an attempt to mislead the

government into violating the JDA. But, as we explain shortly, to obtain

UNITED STATES v. JUVENILE MALE 6699
[15] For the foregoing reasons, we conclude that juveniles

must be provided with the protections of § 5033 “[w]henever

[they are] taken into custody,” regardless of the evidence

available to officers at the time of arrest about the individual’s

age. As R.P. was a juvenile at the time of his arrest, he was

entitled to the protections of § 5033 of the JDA. We therefore

proceed to the question whether § 5033 was violated. 

A. Application of § 5033. 

[16] In analyzing a claim under § 5033, we “must first

‘address whether the government violated the requirements

of’ ” § 5033. D.L., 453 F.3d at 1120 (quoting United States v.

Doe, 862 F.2d 776, 779 (9th Cir. 1988) (“Doe II”)). The government bears the burden of showing compliance with § 5033.

United States v. C.M., 485 F.3d 492, 499 (9th Cir. 2007). If

§ 5033 was violated, we have generally then turned to the

question “ ‘whether the government’s conduct was so egregious as to deprive [the juvenile] of his right to due process

of law.’ ” D.L., 453 F.3d at 1120 (quoting Doe II, 862 F.2d

at 779). If the government’s conduct denied the juvenile due

relief based on a violation of § 5033, a juvenile must demonstrate not only

that the statute was violated but that he was prejudiced by the government’s failure to comply with the statute. To manipulate the protections

of the statute, then, a juvenile would have to be at once sophisticated

enough to know that the law requires compliance with § 5033 regardless

of whether he lies (and to ensure that the police do not, despite the lie,

promptly determine that he is a juvenile through other means), and unsophisticated enough to fail to invoke his Miranda rights and to provide a

confession that is prejudicial to him at trial. The combination is unlikely,

so unlikely that the theoretical possibility of such maneuvering could not

persuade us to ignore the statute’s language and structure. 

The bright-line rule could also lead to arresting officers erring on the

side of contacting the parents of arrestees who are actually adults, with the

result that the parents of some adult arrestees may be notified over their

childrens’ objections. Such errors, however, are likely to result in swiftly

ascertaining that the arrestees are in fact adults, allowing the arresting officers to dispense with the special protections accorded juveniles. 

6700 UNITED STATES v. JUVENILE MALE
process, then the conviction must be reversed. United States

v. Wendy G., 255 F.3d 761, 765 (9th Cir. 2001).11 If we do not

reverse based on a due process violation, we “consider[ ]

whether ‘the violation was harmless to the juvenile beyond a

reasonable doubt.’ ” D.L., 453 F.3d at 1120 (quoting Doe II,

862 F.2d at 779) (quotation marks and alteration omitted).12 If

11Because we conclude that R.P.’s confession was prejudicial to him at

trial, see infra at 6707-08, we need not decide whether the violations of

§ 5033 constitute due process violations. We note, however, as the issue

is likely to recur, that our cases on the relationship between constitutional

due process and the JDA have become somewhat confused. A number of

our cases suggest that when a violation of the JDA rises to the level of a

constitutional due process violation reversal is automatic, while violations

that transgress the JDA alone are only a basis for relief when there is prejudice. See, e.g., D.L., 453 F.3d at 1120; RRA-A, 229 F.3d 737, 744 (9th

Cir. 2000); L.M.K., 149 F.3d at 1035; Doe II, 862 F.2d at 780-81. This

result does not accord with the analysis of due process claims in other contexts, in which a showing of prejudice is often required. See, e.g.,

Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007) (“In due

process challenges, there must be a showing of prejudice.” (quoting

Colindres-Aguilar v. INS, 819 F.2d 259, 261-62 (9th Cir. 1987)). 

The interaction of due process and the JDA was first discussed in

United States v. Doe, 701 F.2d 819 (9th Cir. 1983) (“Doe III”). In Doe III,

we noted that failure to notify a juvenile’s parents might in some cases

constitute a due process violation under Gault if it prevented a juvenile’s

parents from having adequate notice of their child’s hearing. See 701 F.2d

at 822; see also Gault, 387 U.S. at 33. Doe III suggests that a juvenile may

not need to demonstrate prejudice when his parents are never provided

with notice of a hearing on the merits. 701 F.2d at 822. The origin of the

JDA due process cases thus suggests that reversal of a conviction for a

violation of the JDA in the absence of a showing of prejudice may be

appropriate only in those limited circumstances in which the violation

denies a juvenile or his parents entirely the ability meaningfully to participate in his trial. Under these circumstances, it is impossible to assess what

the likely impact of participation would have been. 

Due process violations that prejudice a defendant are, of course, a basis

for relief regardless of whether they are also violations of the JDA. 

12The “harmless beyond a reasonable doubt” standard is not usually

applied to non-constitutional violations. See, e.g., United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc) (holding that where

UNITED STATES v. JUVENILE MALE 6701
the violation did prejudice the defendant, we have “discretion

to reverse the conviction or order other more limited remedies

so as to ensure that the ‘prophylactic safeguard for juveniles

not be eroded or neglected.’ ” Wendy G., 255 F.3d at 765

(quoting United States v. Juvenile, 229 F.3d 737 (9th Cir.

2000)). 

Section 5033 contains several distinct requirements. First,

officers must “immediately” inform the arrested juvenile of

his rights, in language that is comprehensible to him. 18

U.S.C. § 5033. Second, officers must immediately contact the

parents of the arrested juvenile and inform them of the juvenile’s rights and custodial status, and of the nature of his

alleged offense. Id. In the case of an alien juvenile whose parthere has been a nonconstitutional error, we must reverse “unless there is

a ‘fair assurance’ of harmlessness or, stated otherwise, unless it is more

probable than not that the error did not materially affect the verdict”). In

an order amending our decision in L.M.K., we noted that we normally

apply a “more probable than not” standard for cases involving nonconstitutional error. 166 F.3d 1051 n.1 (9th Cir. 1999) (internal quotation marks

omitted). 

Moreover, in articulating the harmless beyond a reasonable doubt standard for the first time, Doe II relied on Bank of Nova Scotia v. United

States, 487 U.S. 250 (1988), and United States v. Indian Boy X, 565 F.2d

585 (9th Cir. 1977), neither of which apply a harmless beyond a reasonable doubt standard to a non-constitutional error. See Doe II, 862 F.2d at

779; Nova Scotia, 487 U.S. at 256 (holding that, “at least where dismissal

is sought for nonconstitutional error,” an error is not harmless when it

“substantially influenced” the outcome or “if there is grave doubt” (internal quotation marks omitted)); Indian Boy X, 565 F.2d at 592-93 (holding

that “the proper standard to be applied is whether it is more probable than

not that the error was harmless”). Nonetheless, subsequent Ninth Circuit

cases have without explanation applied the “harmless beyond a reasonable

doubt” standard despite, in one case, a vigorous dissent. See, e.g., United

States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (“Doe IV”) (the final

question is “was the violation harmless to the juvenile beyond a reasonable doubt?” (quoting Doe II, 862 F.2d at 779)); Jose D.L., 453 F.3d at

1120 (same); see also id., 453 F.3d at 1134 (Alarcon, J., dissenting). We

therefore follow that standard, despite its dubious origin. 

6702 UNITED STATES v. JUVENILE MALE
ents live outside the United States, if it proves impossible to

contact the juvenile’s parents with reasonable efforts, the consulate of his home country may instead be contacted. D.L.,

453 F.3d at 1122. Third, the juvenile must be brought before

a magistrate judge “forthwith” and “[i]n no event shall the

juvenile be detained for longer than a reasonable period of

time before being brought before a magistrate judge.” 18

U.S.C. § 5033. 

[17] The government has not contended, either before the

district court or on appeal, that it provided R.P. any of the

protections of § 5033, instead maintaining throughout that

R.P. was not entitled to any such protections. In particular, the

government has not contested R.P.’s assertion, in his opening

brief on appeal, that “there is no factual dispute that none of

the procedures outlined in the JDA were followed after R.P.

was placed in custody.” Given R.P.’s legal and factual representations and the absence of any opposing government argument that § 5033 was complied with if it applies, we conclude

that the provisions of § 5033 were violated.13 See United

States v. Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir.

2007) (holding that government waived an alternative argu13Even had the government argued that it did provide R.P. the protections of § 5033, it likely could not meet its burden of demonstrating compliance. The Border Patrol Agents acknowledged that they made no effort

to contact either R.P.’s parents or the Mexican consulate. Moreover, we

have held that a delay of as little as 3.5 hours does not comport with the

requirement that a juvenile be advised of his rights “immediately.” Doe

IV, 219 F.3d at 1014. R.P. was arrested at approximately 5 or 5:30 p.m.

Agent Salazar testified that he read R.P. his rights sometime “after midnight,” immediately before interrogating him, and read his rights to him

“roughly” four hours earlier as well. Although the exact timing of the first

Miranda warning remains unclear, R.P. was likely not informed of his

rights “immediately” as required by the JDA. Finally, although we have

acknowledged that certain extraordinary factors may excuse a reasonable

delay in bringing a juvenile before a magistrate, see Doe III, 701 F.2d at

823-24, in the absence of any such explanation, a delay of as little as

eleven hours is unacceptable. C.M., 485 F.3d at 502. In this case, it

appears that R.P. was arraigned not less than 36 hours after his arrest. 

UNITED STATES v. JUVENILE MALE 6703
ment when it did not raise it in its response brief or before the

district court). 

Having determined that § 5033 was violated in every

respect, we turn to the issue of prejudice. This circuit “has

adopted a two-step test for determining prejudice.” RRA-A,

229 F.3d at 747. We must first assess whether any of the violations of the JDA were a cause of R.P.’s statement to Agent

Salazar. Id. If so, the second step is to determine whether R.P.

was prejudiced by his statement. Id. Whether violations of

§ 5033 contributed to a juvenile’s confession is “a factual

question to be explored on remand.” Doe II, 862 F.2d at 781.

A juvenile not provided any of the protections of § 5033

experiences “isolation from family, friends, and representatives of [his] country,” confusion as to his rights, and a

lengthy delay before being taken before a magistrate judge.

See RRA-A, 229 F.3d at 747; see also C.M., 485 F.3d at 503

(quoting Doe II, 862 F.2d at 781). The protections of § 5033

were formulated on the assumption that failure to provide

them is likely to lead to coercive interrogations of juveniles,

so the burden is on the government to show lack of causation

when every provision of § 5033 was violated. See, e.g.,

United States v. Lopez, 500 F.3d 840, 845 (9th Cir. 2007)

(“The burden of proving a constitutional error harmless

beyond a reasonable doubt rests upon the government.”);

United States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th

Cir. 2005) (“[I]t is the government’s burden to establish harmlessness” where the district court committed nonconstitutional

evidentiary error). The district court on remand will need to

determine whether the government can meet that burden in

this case. 

[18] We remand to the district court, because we are not

convinced beyond a reasonable doubt that the confession, if

caused by the violation of the JDA, was harmless. “In assessing harmlessness, we must be convinced beyond a reasonable

doubt that the government’s misconduct did not give rise to

any prejudice.” C.M., 485 F.3d at 503 (citing Wendy G., 255

6704 UNITED STATES v. JUVENILE MALE
F.3d at 767). A defendant is prejudiced by his confession if

his statements are a major part of the proof of the crime at

trial. RRA-A, 229 F.3d at 747 (holding that there was prejudice when the “confession was the primary basis of evidence

on which [defendant] was convicted”); Doe IV, 219 F.3d at

1018 (holding there was prejudice where the statement was

the “sole source of proof of his knowledge of the drugs”). 

[19] R.P.’s statement was “the primary basis of evidence”

that he intended to gain financially and that he knew there

were smugglers who were receiving money to transport the

aliens. See RRA-A, 229 F.3d at 747. The district court found

with regard to the financial gain counts that “pursuant to

[R.P.’s] own statement . . . [R.P.] agreed to drive others to

reduce his smuggling fee.” In the absence of R.P.’s statement,

there would be insufficient evidence to sustain a finding of

delinquency with regard to the § 1324(a)(2)(B)(ii) counts.

Unlike in previous cases that have found sufficient circumstantial evidence of financial gain, R.P. could have had other,

non-pecuniary reasons for driving the truck as he also wished

to enter the United States illegally, and the government presented no other evidence of his association with smugglers.

See, e.g., United States v. Schemenauer, 394 F.3d 746, 751

(9th Cir. 2005) (holding that there was sufficient evidence of

financial gain where the defendant was a U.S. citizen, was

personally connected to the smuggler, and admitted knowledge that the smuggler was involved in smuggling activities,

and the defendant had no non-pecuniary motive for his

actions); United States v. Yoshida, 303 F.3d 1145, 1152 (9th

Cir. 2002) (holding that the evidence was sufficient to support

the conclusion that the defendant intended to gain financially

because the defendant had no possible non-pecuniary motive

for his actions); United States v. Angwin, 271 F.3d 786, 805

(9th Cir. 2001) (there was sufficient evidence of financial gain

in a case involving a U.S. citizen who smuggled aliens

because of the “lack of any other possible explanation for

[his] conduct”) (overruled on other grounds by United States

v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc)). We are

UNITED STATES v. JUVENILE MALE 6705
thus not “convinced beyond a reasonable doubt” that R.P.’s

confession was harmless with respect to the financial gain

counts. See C.M., 485 F.3d at 503. If the district court concludes that the government’s violations were a cause of R.P.’s

confession, the juvenile delinquency finding as to these

counts must be vacated and the confession suppressed. 

With regard to Counts Two, Four and Six (violations of

§ 1324(a)(2)(A)(ii)), there was additional evidence from

which the district court could have found that R.P. had knowingly transported illegal aliens. For example, the border patrol

officers testified that they saw R.P. driving a truck carrying

illegal aliens, and R.P. attempted to flee. Although there was

other substantial evidence, the district court specifically relied

on R.P.’s statement for the conclusion that “he knew the others in the car were undocumented aliens.” Given the persuasiveness of a confession from a defendant and the fact that it

was specifically relied upon by the district court, however, we

cannot conclude “beyond a reasonable doubt” that the district

court would have reached the same verdict absent the confession. Cf. E.E.O.C. v. Farmers Bros. Co., 31 F.3d 891, 898

(9th Cir. 1994) (holding that any error in admission of testimony in bench trial was harmless in light of the fact that

judge specifically stated that he did not rely on contested testimony); Dept. of Water & Power v. Okonite-Callender Cable

Co., 181 F.2d 375, 382 (9th Cir. 1950) (holding that an error

in admitting evidence during a bench trial was not prejudicial

where the findings and opinion of trial court clearly showed

that the court was not influenced by that evidence). Consequently, on remand, if the district court concludes that the violations of § 5033 caused the confession, it must determine

whether, on the trial record but with the confession excluded,

R.P. is a juvenile delinquent as to Counts Two, Four, and Six.

See Wright v. Southwest Bank. 554 F.2d 661, 664 (5th Cir.

1977) (vacating the judgment of the district court where it

relied on inadmissible evidence, and remanding to permit it to

correct the evidentiary error). 

6706 UNITED STATES v. JUVENILE MALE
[20] R.P. argues that the appropriate remedy in this case,

assuming the violations of § 5033 were a cause of the confession, is not merely suppression of his confession on remand,

but dismissal of the information. We have in some cases exercised our discretion to dismiss an information when it is

apparent that the confession formed the basis for the information. See, e.g., C.M., 485 F.3d at 504 (holding that where the

“government’s reliance on the fruits of its misconduct to initiate proceedings against [Defendant] was not harmless beyond

a reasonable doubt[,] . . . [t]he appropriate remedy . . . [is] . . .

to dismiss the charges.”). In this case, however, R.P. was

found driving a truck of undocumented aliens near the United

States border and attempted to flee the police. Several

undocumented aliens were detained and provided testimony

that they had paid for transportation across the border. It is

almost certain that R.P. would have been charged with transportation of undocumented aliens for financial gain even in

the absence of his confession. See Doe II, 862 F.2d at 781

(suggesting that, where Border Patrol agents actually saw the

juvenile behind the wheel of a car transporting illegal aliens,

“it [was] logical for them to start the criminal process in

motion”). In this case, assuming the violations of § 5033 were

a cause of R.P.’s confession, the appropriate remedy “to

ensure that the prophylactic safeguard for juveniles not be

eroded or neglected” would be vacation of the juvenile delinquency findings and suppression of R.P.’s confession, Wendy

G., 255 F.3d at 765. A new trial in which the confession is not

considered would not be precluded as to any of the six counts.

[21] Accordingly, we remand to the district court so that it

may determine whether the violation of § 5033 in this case

caused R.P.’s confession. If the district court determines that

§ 5033 caused R.P.’s confession, it must suppress the evidence of the confession, vacate the conviction as to Counts

One, Three, and Five, and consider whether a judgment of

acquittal is required as to Counts Two, Four, and Six in light

of the remaining admissible evidence in the record. 

UNITED STATES v. JUVENILE MALE 6707
We therefore AFFIRM the district court’s decision with

regard to §§ 5032 and 5036 of the JDA, REVERSE the district court’s holding that § 5033 was not violated, and

REMAND for proceedings not inconsistent with this opinion.14

BERZON, Circuit Judge, concurring in part and dissenting in

part: 

I concur in the majority opinion with the exception of the

conclusion that a remand is necessary to determine whether

the violations of § 5033 were a cause of R.P.’s confession. In

some cases, whether violations of § 5033 contributed to a

juvenile’s confession may be “a factual question to be

explored on remand.” United States v. Doe, 862 F.2d 776, 781

(9th Cir. 1988) (“Doe II”). Here, however, the government

has never disputed R.P.’s allegation that the failure to provide

the benefits of § 5033 contributed to his confession. Nor has

the government argued that, were we to hold that § 5033 was

violated, a remand would be necessary to determine whether

any violations of § 5033 contributed to R.P.’s confession.

Indeed, government counsel refused to make such an argument even when invited to do so at oral argument. 

The government’s failure to argue for remand on the causation issue is well-advised. Section 5033 sets three requirements for the interrogation of juveniles: (1) advising the

juvenile of his rights immediately; (2) notifying the juvenile’s

parents immediately; and (3) taking the juvenile before a

magistrate judge “forthwith.” 18 U.S.C. § 5033. In every

juvenile confession case in which all three of the requirements

of § 5033 were violated, this court has concluded that those

14As we remand for a determination of whether R.P.’s confession was

caused by the violations of § 5033, we do not reach the district court’s

denial of R.P.’s motion under Rule 29(a), nor do we reach the question

whether the district court erroneously relied on hearsay testimony. 

6708 UNITED STATES v. JUVENILE MALE
violations contributed to the confession. See United States v.

C.M., 485 F.3d 492, 503-04 (9th Cir. 2007) (holding that failure to advise juvenile of her rights immediately, to notify the

juvenile’s parents or the consulate, and to arraign a juvenile

promptly were a cause of juvenile’s confession); United

States v. D.L., 453 F.3d 1115, 1115 (9th Cir. 2006) (same);

United States v. Juvenile (RRA-A), 229 F.3d 737, 747 (9th

Cir. 2000) (same); United States v. Doe, 219 F.3d 1009, 1017-

18 (9th Cir. 2000) (same). Cf. Doe II, 862 F.2d at 780-81

(remanding for determination of whether failure to notify

juvenile’s parents or the consulate and failure to arraign juvenile promptly caused his confession where juvenile did not

allege that he was not promptly notified of his rights). A juvenile not provided any of the protections of § 5033 experiences

“isolation from family, friends, and representatives of [his]

country,” confusion as to his rights, and a lengthy delay

before being taken before a magistrate judge. See RRA-A, 229

F.3d at 747; see also C.M., 485 F.3d at 503 (quoting Doe II,

862 F.2d at 781). The protections of § 5033 were formulated

on the assumption that failure to provide them is likely to lead

to coercive interrogations of juveniles. At the least, in those

cases in which none of the protections were provided there is

no basis for holding that the violations did not contribute to

the confession. 

As the majority acknowledges, the burden is on the government to show lack of causation. The government has not suggested that it could meet this burden. I therefore conclude that

in light of the government’s position and the complete lack of

compliance with § 5033, no remand on the causation question

is necessary. I would therefore reverse the juvenile delinquency determination on Counts One, Three, and Five.

UNITED STATES v. JUVENILE MALE 6709