United States v. Eric B.

1381, 1382-83, 3-4, 43 L.Ed.2d 95 S.Ct. reasons, I be-

(1975). For all above correctly held that

lieve the seaman, not and was

Graham employment, two course of

injured in the coverage. Act for Jones qualifications

critical

I affirm. would America, STATES of

UNITED

Plaintiff-Appellee, B., Defendant-Appellant.

ERIC

No. 94-10588. Appeals, States Court of

Ninth Circuit. 13, 1995.

Argued and Submitted Nov. May

Decided a friend at school. Eric B. was gun from Rumann, Public Federal Assistant Celia weapon that two bullets were Phoenix, Arizona, aware for defendant- Defender, gun. possession he took when appellant. Kirby, Assistant United Q. ride home from Beginning Vincent on his bus Arizona, Phoenix, plaintiff-ap- for Chilehinbeto, Attorney, Navajo a small com- school to Arizona, pellee. munity throughout and the rest afternoon, gun Eric B. showed arriving After several of his schoolmates. Chilehinbeto, gun Eric B. showed the to a Sharkey. Jimmy Aware ten-year-old named loaded, pointed Eric B. gun thereafter, Jimmy. Shortly Eric B. gun at LEAVY, and Circuit Before: WIGGINS field, Jimmy to a where Eric B. and went REAL,* District L. Judges, and MANUEL Eric B. one bullet at some rocks. then shot Judge. barrel, spent dropped cas- unscrewed ing ground, removed the one remain- on the REAL, Judge: L. District MANUEL put pocket. it in his ing bullet and B., 7,1994, at the Eric who September On Eric B. went on to have several encounters a seven- twelve-years-old, killed time was juveniles in Eric B. other which would with Navajo Indian Reserva- year-old child on a pull gun person at the and death was a The cause of in Arizona. tion Charlie, fifteen-year- trigger. a Samantha Eric B. was tried the head. single bullet to old, person. pointing was one such After juvenile delinquent. The adjudicated a and Samantha, pulled Erie B. empty gun at committed Eric B. had found that pocket put and remaining bullet from his manslaughter under 18 involuntary act of gun. Eric B. offered the back in the then § 1112. U.S.C. suggested go gun and she shoot to Samantha claiming a violation appeals Zonnie, now Erie B. friends. Tamara one of Samantha’s (Act), Act under U.S.C. Speedy Trial Next, gun B. took the now loaded Eric addition, us to find Eric B. asks § 5036. In Myron eleven-year-old Red- came across (1) denying court erred the district gun loaded pointed Eric B. moustache. (2) acquittal; judgment his motion for gun pulled trigger. Myron the United States failing to find not fire. did jury subpoe- grand impermissibly obtained (3) na; failing to find that leaving Myron, Finally, just minutes after alia, under, inter right provided privacy juveniles playing some Erie B. came across § violated.1 5038was bridge.” 18 U.S.C. as “the One an area known juveniles seven-year-old Nathan these to 28 jurisdiction pursuant U.S.C. haveWe gun at pointed Nathan Crank. judgment entry of final on the based him in forehead. Eric B. then and shot 12, 1994. court on December the district boy Tyrell and gave gun to a named argu- pleadings and Having considered gun. him instructed to hide the Court, the district we affirm ment before this court’s decision. shooting, tribal a few hours of the Within placed him in

police Eric B. and arrested no- evening tribal authorities custody. That I. shooting. Septem- On the FBI of the tified FACTS 8, 1994, the FBI contacted the ber authorities 7, 1994, Attorney and the tribal September afternoon of On the jury grand issued the case. The twelve-years-old, about B., received then * Real, privacy Appellant violation also bases District United States Manuel L. Hon. Third, Fourth, First, California, Fifth and Ninth claim on the sit- Judge Central District of for the to the U.S. Constitution. Amendments by designation. ting

subpoena provides Eric B.’s school records on The Act number 9,1994, agents may and FBI met elapse before a must be trial, day. brought being authorities on that same FBI if tribal de- stayed pending section, agents applicable in Chilchinbeto until the 10th tained trial. The 5036, specifies: September, during which FBI 18 U.S.C. time the regarding any requested prior information alleged delinquent If an who is in detention juvenile adjudication may have had. pending brought trial is not to trial within thirty days upon from the date which such 12, 1994, agent On an FBI begun, detention was the information shall given who had interviewed be dismissed on alleged motion of the de- day, gun. agent B. the On that same linquent court, or at the direction of the Erie B. interviewed and received documenta- Attorney unless the General shows that tion tribal authorities that B. had delay juvenile additional was caused prior delinquency history. no FBI nev- counsel, or his or consented to jurisdiction case, leaving er undertook of the juvenile counsel, and his or would be in the the matter to tribal court. justice particular interest of in the case. 15, 1994, September On the United States Delays solely attributable to court calendar Attorney charging filed an Information congestion may not be considered in the juvenile committing delinquen- an act of justice. Except interest of in extraordi- cy degree murder. Federal author- —second circumstances, nary an information dis- placed ities arrested and Eric B. into federal missed may under this section not be custody 16,1994, September on Erie B. mak- reinstituted. ing appearance his initial day. that same 14, Trial was later set for October According B., to Erie bring failed to within this case to trial this At trial the district court found Eric B. did thirty day requirement. Tribal authorities degree not commit second murder. The 7,1994. arrested Eric September B. on Five court proven held that the had later, days September 12, on FBI pos involuntary lesser included offense of all necessary sessed documentation for certi manslaughter, § under 18 U.S.C. fication, which statutory prerequisite is a The district court held a hear- proceeding against juvenile in federal 12, ing 1994, on December at which time § court. See 18 U.S.C. 5032. Eric B. was family present. the victim’s to be placed custody days later, into federal four The district court also received several let- 16,1994. September on ters public expressing from the concern Erie B. contends in this case that the clock about the facts of the case beseeching or, started to run September either on 9 justice the court to ensure was done. latest, very September such, 12. As 14, because trial commenced on October II. 1994, a thirty-two days minimum of elapsed DISCUSSION before the brought to trial. Consequently, calculating even the time in a A. manner most government, favorable to the day delay this two violated Eric B.’s APPELLANT’S RIGHT TO A SPEEDY speedy trial under the Act. TRIAL UNDER 18 U.S.C. 5036 We first address whether Eric B.’s escape To starting clock from on Sep- speedy rights trial 16, under the Act were violat tember which finding would result in a question fact, ed. This is a mixed of law and occurred, that no violation of the Act appropriate therefore the heavily standard of relies Andy, United States v. 549 (9th review is de Cir.1977). novo. United States v. McCon F.2d 1281 Andy In state ney, Cir.) (en banc), 728 F.2d 1195 cert. authorities first detained the for sev- denied, 469 U.S. days S.Ct. 83 enteen surrendering jurisdiction (1984). L.Ed.2d 46 There, to federal despite authorities. trial date, looking at thirty days having within sev commenced custody, conclude being into federal eral reasons cause us to there was taken no violation of the Act in this the case case. Most court remanded simply, federal authorities took B. into whether violation to determine 16,1994, custody may have occurred. twen ty-eight before trial commenced. necessary Believing it to harmonize the most obvious basis for no viola 5036, Andy a new §§ articulated solely rely Act. tion of the But to on this Andy thirty period. test calculate necessarily bypass ground would the test may begin that the clock from either: held in Andy. articulated Based on the facts of (1) cer- date General case, unnecessary opine it is for us tifies, dili- or the exercise reasonable plain language §§ whether the 5032 and certified, to the condi- gence, could have 5036 is consistent with the test established in (2) the date tions stated in Section reject Andy.3 argument regard We formally as- upon which the Government ing grounds Act on several that we be jurisdiction juvenile, over the which- sumes lieve are consistent both with the Act and the occurs. ever event earlier holding Andy. Id., then at 1283. The ease was remanded to apply First, court in order this new distinguishable district Andy from where days standard. passed than 30 more had the date' jurisdiction formally relinquished the state Here, Attorney Eric contends that the B. juvenile kept custody the in state but necessary on had documentation General all —and trial, B. brought date Eric to the the the 12 and could have certified September thirty days in this case within trial occurred concludes, day. that Eric B. there- matter jurisdiction. of the assertion of federal A fore, September 12 the date use is we should day “gray” period Andy in five existed due to thirty day calculating period. Not when the ceding jurisdic- court’s the state method date, however, 12 September satisfied with tion, its was to be because order effective five designate urges to an even earlier Eric us Thus, days after was issued. the facts date, 9, days tribal au- September two after Andy present question in the of inter- raise juvenile, on as the date thorities arrested jurisdiction who has when an order is preting run. to which clock started is at a date. entered but “effective” later Sep note At the outset we that the differently is: question stated Under the argued ignores 9 Eric B. tember date Act, jurisdictional what is the status of a 5032, § express language pro in which juvenile being by state detained authorities commencing proceedings from on hibited officially after a state court has surrendered yet that date did not because jurisdiction legal but imposes a “fiction” as necessary This possess the documentation.2 In that factual circum- the effective date? statutory precedent to the com condition stance, policy may a that mandate proceedings against mencement days calculating be when those tacked on 12,1994, September not occur until when did thirty day period. But we need not address government received documentation that question presently. this previously adjudicated Erie B. had not been juvenile experienced In this case no delinquent. position B.’s Therefore must hole. authorities assert- respect September 9 date such black Federal jurisdiction had over Erie B. once rejected. ed and be J., (Trask, states, dissenting). Andy, part, “[a]ny proceedings at 3. See 1282 —1283 5032 in note, juvenile chapter against as an though, a under We do as did court in United any prior Baker, 1374, adult shall be commenced until 7 fn. juvenile juvenile such have been — denied, court records of -, Cir.), cert. U.S. S.Ct. court, or the received clerk of (1994), Andy that the test under 130 L.Ed.2d writing juvenile has has in court certified being has been criticized as inconsistent with record, juvenile’s prior or that the record no language plain §of 5036. why it is unavailable.” unavailable and custody they placed Sep- susceptible him in federal on to a claim that the 16, 1994; twenty- trial commenced tember diligence failed to use filing. reasonable in eight days thereafter. Interpreting promote the Act inadequate investigation prosecutors and sanction thirty day period, calculating we do bring race to juve- federal action Andy require an automatic not read tack- contrary history nile is purpose ing days spends on of separate classification for custody. Andy offenders.6 did not instruct state days court remand to add differently, while really framed spent custody days spent to those state urging B. is us to hold that the United States custody. The task of federal the district Attorney in unreasonably by this case acted whether, simply was to assess under not certifying to the Sep- district court on test, using the new federal authorities rea- by § tember the factors mandated 5032— diligence could have sonable certified at a thirty-two days trial started. can-We thirty day period.4 outside the not on this record assume the Act was violat- Looking to whether federal authorities days. ed two diligence the exercise of reasonable could have certified the case on we argues in conclusory fashion that give weight take instruction from and unreasonably acted in not language express- contained in which jurisdiction assuming certifying this case ly provides Attorney General to in- very day 12—the federal au- vestigate appropriate whether the case is proceed. thorities were court, prior to certification.5 The would have been five after the explicitly recognizes statute shooting; it appears from the record and. (and implicitly General’s other law enforce- agent that no federal even the scene ment’s) responsibility to make a well-in- September until proceed to formed decision whether a juvenile Here, in federal court. government the filed an Information days three after it was to do so. Proceedings not could have commenced charged eight days was after the until statutory 12 because of the shooting. period This of time is consistent pre-conditions referred to In above. this § language with providing 5032’s for investi- case, presents no evidence demon- gation prior proceeding juvenile, against a strating government that the failed to inves- conjunction and this section with tigate expeditious in an manner. It is be- should not require be read to yond otherwise. prosecutor cavil that a We given should be Andy do not believe for proposi- a stands the investigate reasonable amount of time to tion that potential and reflect on the charging right forfeits its decisions case, thoroughly especially investigate a involving twelve-year-old a a case and have a child. place To hold otherwise would the reasonable amount of time fully- to make a prosecutor position in a erring on the side informed decision proceed against whether to filing charges becoming juvenile. out of fear of 4. We juvenile (2) out the obvious that the delinquency, district court the State does not have Andy apply of course did not this test when it programs adequate available and services ruling made its initial on the issue of a violation (3) juveniles, needs charged or the offense is a However, here, the Act. this is not the case felony crime of violence that is a or an offense already because the applied district court has described in section ... and that there is a sub- previously Andy, test established in but in the end stantial Federal interest in the case or the offense rejected appellant’s contentions. jurisdiction.” to warrant the exercise of federal added.) (Emphasis juvenile proceeded against A shall not be "un- General, investigation, less the cer- after arbitraiy 6. Counsel asks us to draw an appropriate tifies to the line for district court of the Unit- (1) prescribing appropriate gov- ed States that duration of court or other appropriate investigation juris- court of a State does not ernment’s of this and other have cases. do, jurisdiction diction or especially refuses to assume over This we will not on the facts of this respect said alleged to such act of case. subsequent appearances other all government offers two On

The court, objected counsel defense never finding Act support a that grounds It until the October 14 trial date. was not First, provides the Act violated. was day of trial that defense counsel filed a delay Time is excluded for time. excludable for violation of the Act. Motion Dismiss his counsel.” “caused conduct, according government, if may exist Excludable time 5036.7 U.S.C. any counsel’s waiver of amounted defense are filed delay motions that is caused case thirty violation this and a U.S. v. juvenile’s behalf. Juvenile delay product of Eric B.’s that was Cir.1991) (instruct Male, 939 F.2d 321 It at best would seem to be sand- counsel. Speedy applied, if Trial Act even the ing that bagging. in the district motion to dismiss appellant’s running of that time “tolled” the response, Eric B.’s counsel denies Act). days date, under affirmatively several agreed to the trial she fails to direct this 1994, B. into thirty after Eric was taken affirming for the district court’s deci- basis However, custody. at However, the note conduct we do sion. conference, the pre-trial 22 the court moved by questionable Eric B.’s and con- counsel 14, Friday, October trial to October because suspect appeal process. to be in the tinued Sunday. not on a Defense counsel did 16 fell of facts in Eric B.’s counsel’s recitation the Moreover, best, Erie B. has object misleading, to this date.9 pushing are at the her brief trying claimed prejudice advocacy never indicated the of in to underscore limits Thus, of delay days. advantageous downplay of two the interest and leave facts —or damaging by justice allowing is well here for When confronted met ones. out — delay during appeal, pass statutory speedy argument trial on counsel claimed unfazed the Court’s admonition. seemed muster. violating speedy delay past trial stat- permits the move to dismiss for The Act also additional 7. ute). justice.” thirty-days “in Id. the interests 26, Court, credulity Additionally, with It strains to think the facts Eric B. the 10. 8. consent, government's psychologi- alleges as to failure to act with ordered a the defense counsel’s diligence known trial. September 27. due became at examination of the for cal court, Gonzalez-Gonzalez, would be 522 As an officer of the counsel United v. 9. See States (1975) question, compelled (raising the court such informa- the but not advise F.2d 1040 impact answering, does not effective statement tion. information whether defense counsel's duty confidential of counsel disclose date creates a assistance that trial was “convenient” communications. the that counsel would nevertheless inform 876 fully age intelligence his and level did

B. he not consequences understand the of his actions. THE COURT’S FINDING DISTRICT Further, B., according govern- to Erie the DELINQUENCY OF JUVENILE he, in present ment did not evidence that A court’s denial of a motion fact, gun the realized the bullet was the at acquittal is reviewed in judgment of shooting. Plainly stated, time of the Eric B. challenge to the manner as a sufficien same would have us find this record that as a Shirley, States v. cy of the evidence. United accident, shooting matter of law Cir.1989). (9th 1130, 884 F.2d 1134 and danger pres- he did not understand the pre court must review evidence “[t]his gun in playing ent with this manner. light the defendant most sented Contrary not that Eric B. did to determine favorable others, creating peril foresee his acts any rational trier of fact could have whether government points to Erie and B.’s conduct found essential elements crime B, testimony concerning such conduct. Eric beyond a reasonable doubt.” gun knew the contained two bullets he after Lim, 331, Cir.), cert. pointed received it. gun He the loaded denied, 2944, 113 S.Ct. 508 U.S. Jimmy Sharkey shortly fired thereafter (1993) (quoting Jackson v. Vir L.Ed.2d off, it at gun some rocks. After the went ginia, 2781, 2789, U.S. S.Ct. cylinder, dropped B. unscrewed (1979)) (emphasis origi 61 L.Ed.2d 560 in the spent casing ground put on the the re- nal). maining pocket. bullet in his trial, After a one the district court ju- These acts alone demonstrate that the guilty degree found Eric B. not of second degree venile had a sophistica- sufficient However, murder under 18 U.S.C. understanding tion gun’s opera- the district court did find the tion, corresponding and the cause and effect proven beyond had a reasonable doubt defen- firing weapon, loaded foresee guilty dant of the lesser included offense consequences peril of his actions and the involuntary manslaughter. See 18 U.S.C. created aiming gun loaded at another § 1112. Later, being. human again pointed child, gun Charley, at another Samantha government pre claims trigger being pulled. and she heard prove req sented insufficient evidence to gun, put remaining showed her the involuntary manslaughter. uisite elements of go bullet and told her shoot Zon- Tamara Specifically, support failed to evidence repeated nie. Eric B. this exact conduct the court’s that Eric B.’s actions dem Redmoustaehe, Myron but this time “a disregard onstrated wanton and reckless gun go did was loaded. It off.13 for human life.”12 simply repeated act final end, To that for Eric B. counsel claims the same conduct engaged which he had juvenile knowledge had neither “actual throughout time, day. But B. Eric conduct his was a threat to the lives of pointed gun seven-year-old boy at a others” nor “knowledge did he have of such shot him in the head. He intended to reasonably circumstances as could be said to gun pulled at the victim and he made him peril have to foreseeable to trigger just had like he several times before. subject might which his acts others.” United Keith, (9th Cir.1979) v. States leading 605 F.2d 462 up The circumstances to fatal Pardee, (citing United States v. 368 F.2d 368 shot and the itself final act demonstrate more (4th Cir.1966)). Erie B. claims that due than to to sufficient evidence conclude that Eric (9th Cir.1987)) (internal Involuntary manslaughter quotations is defined as F.2d "an 156 killing omitted). unintentional that evinces a wanton or life, disregard reckless for but human not of the support finding extreme nature that will a of completely 13. Eric B. leaves this out of his state- Paul, malice.” United 37 States v. F.3d 499 ment of facts. Cir.1994) Lesina, (9th (citing United States v. 833

877 timely reasonably peril applicable acts in cases where a ob his created dard foresaw Therefore, made, jection is not v. the district U.S. Hernandez-Rod victim. to the (9th judg- Cir.1992), correctly riguez, Eric B.’s motion for 975 F.2d 622 Erie B.’s denied acquittal. rejected. analyzing must be if a claim When ment error, plain to

defect rises the level of a court C. must assess whether claimed error is prejudicial, affecting highly substantial USE THE OF THE GOVERNMENT’S Id., rights. plain 628. No error exists TO “INVESTIGATE” GRAND JURY this case. THIS CASE gov any prejudice contends that the B. fails next to demonstrate grand jury improperly used impacting rights ernment whatsoever substantial due subpoena Eric B.’s having it a for acquisition issue of school records via records, constituting illegal investi jury subpoena. argument school grand Counsel’s is jury said grand rhetoric, After the received gation. noticeably and is an exercise records, pursuant to moved any specific to harm. silent as 6(e) to to release the records Fed.R.Crim.P. argument as in- is follows: Since this case Questions prosecutorial Services. Pretrial twelve-year-old a who volved could not be questions mixed of both involving misconduct criminally prosecuted under circum- law reviewed de novo. United fact and are stances, jury it improper grand (9th Rosa, Cir.), De F.2d 1401 v. 783 States juvenile’s subpoena school records. denied, 3282, 91 cert. 477 U.S. S.Ct. jury are grand Powers of limited to (1986). L.Ed.2d returning returning indictments And, criminal matters. because this outset, recognize that nowhere At the we not a matter case was criminal due to the rec- appear that these in the record does B., grand jury status To evidence at trial. ords were offered as or not could not choose to indict indict. As asserts, contrary, such, counsel’s contends that the contest, that these school Eric B. does not merely using jury grand adjudicate delin- were used records never clearly investigation, a tool for which is as Apparently, quency. these school records Woods, improper. United States v. psychological prepare were used (6th Star, Cir.1976); United States v. incorpo- B. and report concerning-Eric were (9th Cir.1972). F.2d report. Eric B.’s into the rated objected never to the use of the counsel argument, Notwithstanding this purposes and thus waived records these any prejudice failed to re has demonstrate grounds setting as aside the this issue sulting acquisition the school delinquency. Counsel’s failure im He that this claimed records. concludes proceed- object alleged to this defect in the propriety warrants dismissal.14 It is not nec to raise ings constitutes waiver extent, essary what if at for us decide to Visman, 919 appeal. U.S. v. this issue all, grand jury may participate in investi Cir.1990) (recognizing that F.2d 1390 suspected gating a. to have who object presen- information in the failure Here, committed crime.15 prohibits raising anew report the issue tence showing prejudice. no makes appeal). Mechanik, 72, 106 475 U.S. S.Ct. 942-43, (1986); Moreover, if find we were to L.Ed.2d United even Lim, us, properly and v. 984 F.2d at 335. See Fed. that this is before States issue error, defect, “plain (“any irregularity the error” stan- R.Crim.P. employ appropriate safeguard, appellant hay to make of the fact Interestingly, appellant notes that some con- tries 14. protections, notably right "most the stitutional was it was not constitution- that it utilized where by jury,” grand are afforded to indictment not ally mandated. (App. juveniles. Appellant's Opening See Brief Thus, recognizing Op.Br.), p. the while 14. Br., Op. App. p. See 14. 15. acting grand jury body as is a constitutional letters, Notably, not six affect substantial or variance which does these two were sent Therefore, family, rights disregarded”). by shall if the by be victim’s one was sent the exists, not rise to the level of error it does prosecutor charge chief in against the case regarded be as harm- plain error and should Court, Navajo Family inB. was and one beyond doubt. less a reasonable by emergency sent the medical technician responded shooting.

who scene to the of the by All letters sent these individuals demon- D. limited, very non-specific knowledge strate AND APPELLANTS CONSTITUTIONAL precise proceedings. about the re- The two TO PRIVACY STATUTORY RIGHT maining any letters do exhibit intimate knowledge particulars of the the case Last, to Erie we turn B.’s claim that whatsoever.18 claim, violated. privacy his This appeal, framed on also was not raised as the states authors of these plain A the district court.16 error juvenile by letters refer to the his full name should be utilized issues not standard case, concludes, and allude the to facts in and to the court below. presented therefore, released con- Holland, (9th Cir.1989). fidential information. This be cannot Thus, Eric B. must demonstrate a clear error definitively deemed establishing evidence im- United States v. affecting rights. substantial proper by government. disclosure The Dorri, Cir.1994). 15 F.3d 888 benign reasonable inference leads to a presented by This final very conclusion. Chilchinbeto is a small Na- juvenile’s statutory asks us to find that vajo community.19 large part, the content privacy rights and constitutional were violat- by of the non-family letters sent members ed, warranting of all charges dismissal prior describes Eric conduct B.’s to the juvenile. of the shooting. familiarity identity necessarily B. of Eric which he Erie B. first gov contends attributes misconduct is 5038(a),17 ernment violated 18 U.S.C. likely least as logically to be—and more releasing concerning confidential information reasonably to the size of the com- claim, proceedings. support To this —credited munity. understandable, particularly This is to six points that were letters sent to the light offense, shocking judge, nature of as evidence that confi this appears and the pub dential information released to fact that it several communi- ty lic. experience members had with Erie B.’s victim, Apparently, objection Eric B. made counsel for a limit- 16. disposition related to final of such letters, seeking only ed to these for Eric juvenile by the Court in accordance of Sec- B. to be allowed to content see the of the letters. tion 5037. this, The court and counsel did not object to the use of the letters at the certainly carry day, While it does not 18. hearing. appellant notes that himself submit- family ted several letters from extended members 5038(a), pertinent part, reads: others, in which the same inference of im- throughout upon completion proper part appellant's disclosure coun- juvenile delinquency proceeding, the records may sel be made. safeguarded shall be from disclosure to unau- persons. thorized shall be records re- necessary leased to the extent to meet the convincingly demonstrated following circumstances: Geoffrey Keahey, paramedic the letter sent responded shooting. who scene of to the Mr. 3) inquires agencies from law enforcement Keahey's son was one of the children at whom request where the for information is related appellant pointed gun prior shooting investigation position of a crime or a Keahey fatal shot. It is no wonder that Mr. agency; within that appellant's knows the last name and some of the surrounding shooting. circumstances His 6) inquiries such victim of such intimately tragic son was involved event. juvenile delinquency, or if the victim is de- family ceased from the immediate of such striking this kind judges experienced at are of the troubling behavior delicate balance----” of shooting. only Here, allowed district court are sum, excerpts of six letters select In family B.’s to at- parents and Eric victim’s argue that the by Erie B. to

being offered district court proceedings.20 The tend the flagrantly violated to attend the family pro- members only appropri- calling for the privacy, right to parents to ceedings in for the victim’s order case. Woven of this dismissal redress: ate accept the outcome. understand and better unsupported asser- argument is the into this speak at father did the victim’s While improperly somehow these letters tion that only after the hearing, it was disposition sentencing deci- court’s the district affected place stated it intended court correctly Yet, as the sion. ultimately it did. probation, which on out, still decided district court points preclude the expressly Act does not placed the incarceration and using from its discretion re- district court probation. family garding presence members receiving letters In addition to hearing. inspection of disposition Close Erie of both from the relatives public and not lead to the conclusion that the Act does victim, hearing disposition at the and the Congress proceedings, intended closed with- family the victim’s court allowed the district exception. example, For 5032 states out family juvenile’s to address and may be convened at time and that “court court erred Eric B. asserts the court. district, in or oth- place within the chambers former, mention does not by allowing the but language implicitly confers erwise.” This latter. propriety public to control ac- on the court discretion interpret § relied, proceedings. To cess to the part, on United court The district (3rd Cir.1994), differently superfluous the dis- A.D., would render “in chambers” tinction between the words family victim’s presence of the permitting the AD., and “or otherwise.” hearing. a news at the juvenile proceedings. sought access to paper Finally, argues that his constitu- Amend the First Avoiding a clash between right privacy was violated. More tional juvenile’s right privacy un ment and the right constitutional specifically, he claims his Act, that a district the court held der the personal matters was vio- of nondisclosure basis, may, case-by-case balance court released, information was as evi- lated when juvenile against the inter of the the interests letters, the above denced seeking pro access to the party of the ests dispo- parents at the presence of the victim’s ceeding. Id. at 1359. hearing.21 sition Congress if opined court that recognizes

The A.D. Eric B. cites no case to be closed to juvenile proceedings right free from disclo- desired to have constitutional except litigants, juvenile proceeding. witnesses everyone in a sure all facts elicited explicitly personnel, support position, it could have Eric B. as- Trying court Congress right did not. be of non-disclosure con- “[t]he But serts that said so. juveniles through gives mandate also expressly the act did ferred on cause right the non in all constitutional hearings and sealed records rise to the closed confidential, personal infor- circumstances, [sic] to the district disclosure is left Br., unique p. 24. This App. Op. mation.” respective interests when the to balance cursory argument loses steam on even “[district is because arises. This need appellant may appel- inferred that counsel It be that counsel for adds 20. The lant, presence privacy making objection to the concedes that this don’t, however, stated, parents, dropped reply "I suspect, appellant's the victim’s brief all since family being present object to the victim’s reference to this issue. Court, addressing as coming purposes of govern- long they leave and the are asked to as happens after apprise of what can them ment hearing, portion Your Honor.” Act, provides motion, which for numer- review of the trial court did not find a exceptions permits to nondisclosure and waiver of ous the time limits. family to a victim’s have access informa- Congress passed speedy provi- trial final regarding

tion of the sion, it, signed the President the United 5038(a)(6). case. See charge States decided what make, charge, whom to and when to take the give Even if we were to credence to Eric custody. accused into An assistant United do B.’s we not —Eric B. —which attorney contended that a trial on demonstrate, mention, again fails to or even October 14 was within the time limit. The any prejudice suffered from the acts of which date, district court set and we have complains. he expect year affirmed. We do not a twelve Accordingly, ruling we affirm the obey statute, old child to tell us how to court.22 expect nor should we an assistant defender govern- volunteer advice to the LEAVY, Judge, concurring: Circuit ment or to the court on how to avoid a charge. dismissal of the I concur the result reached the ma- issues, jority agree on all substantive judgment of the district court should however, separately,

be affirmed. I write I

because see no need to discuss “excludable implicit

time” or the defendant’s consent

exceeding thirty-day statutory limit. As agreed

we are the trial was within the statute, time allowed discussion of HELICOPTERS, INC., AIR ONE nothing excludable time and consent have corporation, a California are, therefore, do with the outcome and mere Petitioner, dicta. speedy depended Even if the issue of trial FEDERAL AVIATION consent, implied on our consideration I see ADMINISTRATION, no basis for criticism of defense counsel. No Respondent. suggests one that she made false state- No. 94-70245. anyone

ments to the court or else. When date, October 14 was set as the trial she had Appeals, States Court of pending appeal magistrate judge’s Ninth Circuit. denial of her motion for release from custo- dy. If she had appeal, been successful on the Argued and Submitted Feb. 1996. speedy trial gone away. issue would have Decided June asked, you The court expect go “Do trial thirty days’ within the time?” She an-

swered, custody, yes, “If he’s I would.” morning

On the of trial counsel moved to Speedy

dismiss for violation of the Trial Act. argued

She that under United States v.

Andy, Cir.1977), 549 F.2d 1281 the act

had been ques- violated. The trial court motion, timing

tioned defense counsel’s

with the expense admonition that “there is an getting people all these denying here.” In attempt presented counsel’s to have appeal this Court the true issues to be on an punish any showing without this nature. prejudice unseemly conduct not addressed to notes Appeal Eric B. in this ease filed Notice any part establishing of the record Court 22, 1994.8 Order on of Detention Additionally, it claim. did not become this the order of de- district court affirmed did not act with clear Sep- September 27. And on both tention diligence in proceeding due with this case Erie B. filed 30 and October tember testimony received at trial. Conse- until Both motions were de- for Release. Motion Erie quently, B.’s counsel asserts that she government contends nied. good acted in faith based on the information delay days should be excluded due to eight at the also available time.10 counsel At agree. Erie B.’s motions. We caused there notes that could be no affirmative obli- least, days very two should be excluded gation to alert court had known counsel on the motions the calculation based problem earlier. This would have by Eric B.’s counsel. filed obligation to her violated counsel’s ethical and Eric client B.’s Sixth Amendment Finally, government argues that de- to effective assistance of counsel.11 implicitly counsel consented to fense limit, thirty day by agreeing to exceeding the we Because have determined that there Originally, 1994 trial date. the October Act no violation under the on the based trial for district court set October analysis, need not above we address

Case Details

Case Name: United States v. Eric B.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 30, 1996

Citation: 86 F.3d 869

Docket Number: 94-10588

Court Abbreviation: 9th Cir.