United States v. C.M. (A Juvenile)

485 F.3d 492, 2007 U.S. App. LEXIS 10858, 2007 WL 1322482
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 8, 2007
Docket05-50585
StatusPublished
Cited by16 cases

This text of 485 F.3d 492 (United States v. C.M. (A Juvenile)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. C.M. (A Juvenile), 485 F.3d 492, 2007 U.S. App. LEXIS 10858, 2007 WL 1322482 (9th Cir. 2007).

Opinions

Opinion by Judge FERGUSON; Dissent by Judge CALLAHAN.

FERGUSON, Circuit Judge.

Title 18 U.S.C. § 5033 of the Juvenile Delinquency Act (“JDA”) prescribes the process due to a juvenile who is placed in federal custody. The arresting officer must immediately advise the juvenile of his or her rights; immediately advise the juvenile’s parents, guardian, or custodian of the juvenile’s rights; comply with any request by the juvenile to speak with his or her parents or a parental surrogate; and bring the juvenile before a magistrate judge “forthwith.” None of these requirements were met in this case — C.M. was not advised of his rights until six hours after his arrest; neither his parents, nor any individual who could act in loco paren-tis, were notified of C.M.’s rights; C.M.’s repeated requests to speak with a representative of his consulate went unheeded; and C.M. was locked in a holding cell for nearly ten hours before being brought before a magistrate judge.

We find that the government violated every requirement of 18 U.S.C. § 5033, and that these violations were not harmless. As a result of the government’s illegal conduct, C.M. lost his right under § 5033 to the advice of an adult guardian prior to interrogation. C.M.’s confession, which should have been suppressed, was used to support the information initiating his prosecution. Because the government’s misconduct constitutes prejudicial error, we reverse.

I. BACKGROUND

A. Arrest and Detention

Around 4:25 a.m. on May 20, 2005, seventeen-year old C.M., a Mexican national, approached the border patrol checkpoint on the 1-8 westbound near Pine Valley, CA. He stopped his vehicle and the officer on duty observed two persons seated in the back with their heads down. C.M. responded briefly to the officer’s questions and then proceeded forward without having been visibly flagged on. The officer yelled for deployment of a “spike mat,” which flattened the tires on the vehicle and brought it to a rest about a half-mile from the checkpoint. C.M. and the six other occupants of the vehicle were apprehended as they scattered into the nearby brush. The arresting agents, Saul Enriquez and Rebecca Brudnok, transported C.M. and the six other occupants of the vehicle to the checkpoint for processing. A keyless [497]*497entry remote for the vehicle was found on C.M.

At the checkpoint, arresting agents En-riquez and Brudnok locked C.M. in a holding cell and began processing the detainees, including asking each of them basic biographical questions. From the birth-date that C.M. gave the arresting agents, they realized he was a minor. Neither arresting agent, nor any other agent at the checkpoint, informed C.M. of his rights or attempted to contact his parents.

After two hours had elapsed, Agent En-riquez informed C.M. that he had the right to speak with the Mexican consulate. C.M. asked to exercise this right. Agent Enriquez called the consulate, but upon receiving no answer, hung up the phone without leaving a message. Agent Enri-quez did not make any further attempts to contact the consulate. Instead, he called a supervisor, who told Agent Enriquez that they would try to contact the consulate “later.” Agent Enriquez testified that, “at the time,” he did not have an all-hour emergency number for the consulate and did not know “for sure” that such a number existed. Agent Brudnok, however, testified that an all-hour number for the Mexican consulate was kept at the border checkpoint. Agent Brudnok also testified that she never attempted to contact the consulate with that all-hour number.

Four hours later, at 10:15 a.m., Supervisory Border Patrol Agent David Holt contacted consular official Ivan Castillo and advised Castillo that C.M. was a juvenile being held for alien smuggling. C.M. was not concurrently given the opportunity to speak with the consulate.

At 10:20 a.m., Border Patrol Agent Luis Gutierrez arrived at the checkpoint from San Diego to assist with processing C.M. Forty minutes later, around 11 a.m., Agent Gutierrez first notified C.M. of his Miranda rights in Spanish. C.M. waived his right to remain silent and Agent Gutierrez proceeded to question him. Sometime after beginning the interrogation, Agent Gutierrez asked C.M. whether he had contact information for his parents. C.M. responded that he did not.

Around 12:40 p.m., Agent Gutierrez re-advised C.M. of his Miranda rights. The record does not indicate whether C.M. waived his rights this time. Nonetheless, Agent Gutierrez continued questioning C.M., who again asked to speak with the Mexican consulate. Agent Gutierrez ignored C.M.’s request, telling C.M. that he would get a chance to speak with the consulate and an attorney later. During the second period of questioning, C.M. indicated that he was living with his uncles in Los Angeles. Presentence Report (“PSR”) 2. Agent Gutierrez did hot attempt to contact C.M.’s uncles, but instead continued to question C.M., who ultimately gave a sworn statement incriminating himself.

The government used C.M.’s incriminating statements to support a juvenile information that it filed against C.M. that afternoon, alleging six counts of delinquency. After obtaining C.M.’s incriminating statement, the government transported the juvenile to San Diego, where he was arraigned around 4 p.m. on the information. The information charged C.M. with three counts of transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(l)(A)(ii), and three counts of bringing in illegal aliens for “commercial advantage or private financial gain,” in violation of 8 U.S.C. § 1324(a) (2) (B) (ii). At the arraignment, the magistrate judge appointed C.M. counsel and noted that no family members or representatives of the Mexican consulate were present. C.M., through counsel, denied the allegations in the information. Dist. Ct. Rec. 4.

[498]*498B.Motions and Trial

On June 1, 2005, C.M. filed motions to suppress statements, to suppress evidence, and to dismiss the information due to multiple violations of 18 U.S.C. § 5033. The government filed its response on June 13, 2005, also filing motions in limine to exclude expert testimony, admit evidence of transport, admit evidence of prior misconduct, admit demeanor evidence, and admit statements concerning financial arrangements.

The motion hearing and trial were conducted together on June 15, 2005. The District Court granted the government’s motions in limine, except the motion to admit Rule 404(b) evidence of prior misconduct. The District Court concluded there were violations of the JDA, but that these violations did not deny C.M. due process. As such, the Court denied C.M.’s motion to dismiss the information.

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485 F.3d 492, 2007 U.S. App. LEXIS 10858, 2007 WL 1322482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cm-a-juvenile-ca9-2007.