*2 BOOCHEVER, and Before ALARCON *, Judges, THOMPSON District Circuit Judge.
ALARCON,
Judge.
Circuit
appeal presents three
This consolidated
juvenile1
(1)
who con
issues:
whether
an
to a
sents
trial before
tried or to enter a
absolute
to be
magistrate;
(2)
whether
which,
probation
term
sentenced
longer
term
while
adult,
imposed
could be
on an
exceeds
impris
adult could be
term
which an
;
(3)
oned
permits
federal
proceed against
divests
jurisdiction.
district court of
federal
*
Thompson,
criminal acts.
Bruce
found
have committed
Hon.
R.
Senior
Nevada,
Judge
sitting
Frasquillo-Zomosa,
10
District
for the District of
by designation.
(9th Cir.),
(1980), provides an excel
I. attempted Cervantes to file his jurisdiction, consent to the magistrate’s proceedings arises insti- appeal from refused exercise juveniles, tuted two John Doe and over the and transferred it to district Francisco Gonzalez-Cervantes. court. The court judge denied the Proceedings Against A. *3 motion remand. magis An information was filed in the stipulated Cervantes was tried on facts court, charging being
trate’s John Doe with adjudicated juvenile delinquent. a He juvenile a delinquent,2 in violation 18 of placed was on probation until his 21st birth- activity U.S.C. 5032. criminal under § day, period a four years. of about lying juvenile delinquency charge was illegal States, into the entry a viola II. tion of 8 1325. The § U.S.C. United States Attorney, compliance in with 18 U.S.C. MAGISTRATE JURISDICTION 5032, filed certification with the § Both Doe and (appellants) Cervantes con stating that the Juvenile Court in San tend Rule 2(c)3, Diego county refused to assume their of a consent to be tried before a over Doe. magistrate the magistrate’s jurisdic makes attempted to file consent form mandatory, long tion so as the district court agreeing proceed a magistrate; has not the case ordered be conducted be of refused tender fore it and the peti United States has not sent and transferred the case to district tioned removal to the district court. judge, on Doe’s They contend that reversal of their convic motion, magis- remanded the case is required tions they attempted because trate, but later revoked the remand. file magistrate’s jurisdic a consent to the tion, objections and were tried over their
Doe was tried in the district court on district court. stipulated adjudicated juvenile facts and delinquent. He placed 2(c) provides part: “If the de- year. one signs fendant written consent be tried ., . . Proceedings B. Against Gonzalez-Cer- shall take the defendant’s to misde- vantes added). charge.” (emphasis meanor án information filed Although appear it might 2(c) that Rule court, charged juvenile Cervantes magistrate jurisdiction fact does in make delinquency, of violation 18 U.S.C. mandatory proceeding, in a criminal I be- against Doe, in the As lieve that is inapplicable rule activity juvenile criminal underlying the de- context of a charge delinquency. linquency charge illegal entry was an States, of 8 violation U.S.C. 1325. The appellants were charged both Again, a by being juvenile certification was filed delinquents. Unit- with The crimi stating ed Attorney States underlying the Juve- nal violation delin nile Diego county Court for San quency charge refused to in both cases was a misde assume illegal entry over Cervantes. into the United meanor — “(h) 2. An magistrate may, petty is “the viola- in a offense by tion of a involving law the United States committed which consent person prior eighteenth birthday to his trial before a has been filed under would have been a crime if section, committed (b) of this exercise all adult.” 18 U.S.C. § 5031. granted powers to the district court under Chapter (emphasis added) 403 of this title.” 3401(h) Magistrate juris- allows juveniles. pro- diction over 18 U.S.C. § part: vides in essential to a fact-finding procedures sized Appellants See U.S.C. § States. crime, however, fair trial. were not being juvenile de charged with they were Appellants have set forth no reasons a misdemeanor which is neither linquents, the non-exten support proposition de Adjudication felony. nor 2(c) juveniles results in the sion of Rule crime, but is not conviction linquency trial, perceive we can denial of a fair juvenile’s rather, of a sta a determination see none. I therefore no due is a civil rather tus. It non-ap protection problems from the equal Frasquil v. See United prosecution. 2(c) delinquen plication of Rule (9th Cir.), lo-Zomosa, 626 F.2d cy charges.4 (1980); United States v. Du III. 1979); boise, 649-50 Hill, *4 TERM OF PROBATION 2(c), Rule which 1976). Accordingly, jurisdiction over misde magistrates gives 5037(b) governs 18 sen- U.S.C. § juvenile inapplicable pro in meanors is adjudicated juvenile tences for those to be ceeding under U.S.C. § “Probation, delinquents provides part: commitment, or commitment accordance an in Appellants contend (c) beyond shall not extend 2(c) of Rule discriminates irra terpretation juvenile’s twenty-first birthday or the juve tionally against persons im- term which could have been maximum equal delinquency, in violation nile posed an adult convicted of the same on process and due clauses of protection ” offense, whichever is sooner. . . . I disagree. Constitution. per- The term of imprisonment maximum this construction of The contention that a misde- missible for an adult convicted of 2(c) equal protection appellants denies is meanor violation of six spurious. juvenile delinquency § stat- juvenile proceeded violating permit utes to be months. An adult convicted of however, juvenile as an so re- given adult if the can be five U.S.C. § writing the advice of counsel. quests probation. on years Thus, appellants could 18 U.S.C. § 5037(b) Appellants contend that means § procedures all have availed themselves of adjudicated juvenile person to be process available to adults. The due put delinquent only probation can be similarly tention is without merit. imprisoned. an adult long as could be Supreme has indicated that Court disagree. We clause, process rights not due all plain meaning of 5037 is § of a assured to an adult accused crime need a term juvenile given can be juvenile in be extended to a his or her impris imprisonment equal to term of proceeding. The delinquency applicable imposed on onment that could have been due standard to be used evaluat sen given probationary adult and can ing assured an adult adult equal tence to that which an could need be extended to a that of five-year An adult can receive a receive. fundamental fairness. McKeiver v. See 528, 543, violating probation term 8 U.S.C. Pennsylvania, S.Ct. 1976, 1985, 1325. Since and Cervantes § given terms of under this empha- fundamental fairness standard has both however, This, only probation. lants does 4. The Government contends this issue is Rather, only controversy not moot. moot because the difference between a render any might render error harmless. Fed.R. trial court and district 52(a). Because we find that there was is that a sentence a Crim.P. error, applicabili- probation. 3401(h). not 18 U.S.C. we need determine Here, ty appel- courts sentenced of the harmless error rule. maximum, Imperial County imposed on Courts was essential five-year the terms be legitimate.5 appellants proceed against fore the district court could The government
him. concedes that Imperial County crime occurred in —and IY. thus that a referring Impe County rial would appropri have been more CERTIFICATION however, government, ate. The claims such had Doe contends require reversing error does not Doe’s conv proceed against him be- We find that iction.6 this certification cause filed in his case was the certification was sufficient to allow the district court to find, however, substantively incorrect. proceed against Doe. that under the facts of this the sub- require inaccuracy stantive does not rever- If the existence an accurate certi sal of his conviction. jurisdictional, fication is the conviction must be It is reversed. our view that the part: provides 18 U.S.C. 5032 filing of an accurate juvenile alleged A to have committed an jurisdictional. shall not be proceeded against court of the language We conclude from the Attorney unless the Gener- statute that a district court has al, investigation, ap- after certifies to an over if that is “alleged propriate to have committed an act of delin *5 ” that the court or other States quency . . . . quite While the statute appropriate (1) court aof state does not clearly requires the aof certification jurisdiction have to refuses assume before the district pro court can institute jurisdiction over said with re- ceedings against juvenile, the the statute spect to delin- does require judge not the trial to deter quency. added) (emphasis . .. mine, sponte, sua if the certificate filed appropriate refers to the state court before stating A certification the that instituting binding proceedings against the Diego court County of San refused to as- juvenile. Where, here, a certificate was timely sume over Doe was filed filed, and timely appeared that certificate appropriate in the district court. Doe regular face, claims, judge on the its trial has no appeal, on that certification was in- duty independently investigate to underlying effective because the de Imperial County, act if prop was committed in and termine the certificate refers to the therefore, filing Moreover, a er only certification from the state court. did not de Appellants rely 3401(g)(3) attempt error, remedy any also on 18 In an U.S.C. to the support government, briefs, appendix to their contention maximum as an its to filed a they subject Imperial stating County sentence that certification misplaced. was six months. This is reliance courts refused assume over Doe. 3401(g)(3) governs magistrate’s faulty Because we find that certification offenders, youth appli- require sentences for and is not does not even reversal without at- inapplica- delinquents. cure, cable to tempted we need not decide whether bility timely. underscored fact that another 3401, 3401(h), governs magis- note, however, We the statute does not sentencing juvenile delinquents. trate’s Sec- set forth when the need be certification filed. (g) (h) example, tions are dissimilar. For provides: proceeded The statute “shall not (g) magistrate imprison while under a can a against ... unless ...” a certification is filed. offender, (h) youth prohibits magistrate from proceedings It does not state that cannot be sentencing juvenile delinquent to a term of undertaken We until certificate filed. ex- imprisonment. consistently The criminal code press opinion as to when the certificate youth recognizes distinctions offend- between must be filed. juvenile delinquents. Compare ers and seq. (juvenile delinquents) 5031 et (youth seq. offenders). § 5005 et here, we such circumstances exist object to certifica counsel fail fense any was waived.8 therefore find error “appropriate.” tion, it was agreed that she rely on trial believe that the judgments AFFIRMED. by the representations acqui the face of Attorney, particularly BOOCHEVER, concurring: Judge, Circuit counsel, that certifi by defense escence by Judge I in the result reached concur The district is accurate. cation and IV agree with sections III Alarcon and juvenile. proceed is then free however, believe, I opinion. of his do Moreover, believe that the we do not necessary in this that it is case to determine requires rever within the certification being juvenile whether one any non-jurisdic Doe’s conviction delinquent, sal of who consents to a trial before that the defendant ground. We note magistrate, tional an absolute objection the certification at or to made enter fact, pretrial at a mo rather the district court. trial court level. than attorney stated the district tion Doe’s advantage to a defendant “the appropriate court: enter- being or in tried before court did not stating that the State filed magistrate, ing plea rather gen Mr. jurisdiction over wish [Doe].” judge, district court object party must to an eral rule is that a impose imprisonment. cannot a sentence of opportunity, or that error error at the first 3401(h). jail sen- Because See U.S.C. § 51. Defense is waived. See Fed.R.Crim.P. cases, imposed we tences were not in these certification, was aware that counsel question Magistrates need not reach County Diego that San courts refus stated 2(c)’s juvenile proceed- applicability jurisdiction. She had access ed to assume ings. showing that the criminal activ to the facts Judge Thompson I that a agree also Thus, Imperial County. ity occurred adjunct as an of the dis- serves objection the error Accordingly, trict we are not have to the district should been made jurisdictional because fronted with a issue *6 opportunity. the judge at earliest jurisdic- cases within a district court’s come 52(b) the cognizant of the fact that of by they whether are tried regardless tion of Federal Rules of Criminal Procedure allows judge. magistrate or district court “plain appellate to notice error” an court though objection to the even no THOMPSON, Judge, BRUCE R. District applicable only made at trial. This rule concurring. exceptional circumstances when neces sary “prevent miscarriage justice, to of or III and I concur in the result and in Parts reputation preserve integrity the and of disagree IV of the memorandum. I do process.” judicial United States v. Esk the memo- analysis with the Part II of ridge, Cir.), randum, entirely F.2d find it to unneces- but I implication sary carry it the U.S. and to magistrate jurisdiction We do not believe that by noting appeal referred There was in this 7. no claim faulty jurisdiction certification was filed bad faith. We to a court that was without state express opinion objection delinquent, alleged as to an would be over the counsel faulty need be made at trial if prudent object at not to the certification prosecutor in bad it is acted level. Counsel could then await district court faulty certification. faith verdict, if that was unfa- lower court vorable, ap- expect an reversal on automatic otherwise, we Were we to hold would be peal giving at the defendant a second chance — object encouraging defense counsel not acquittal. See Fed.R.Crim.P. 51. improper opportu- at the certifications earliest nity. If could a reversal defense counsel secure something separate and distinct from the in aid of the district court. There- after, jurisdiction the entire place of the court. takes under the district juris- court’s total control and prosecutions Both of these criminal diction. complaints, charg- initiated one added). (Emphasis also: McDonnell ing charging a misdemeanor and the other Corporation Douglas v. Commodore Busi- an act delinquency, which were Machines, Inc., ness 9th Cir. Magistrate filed with a United States for Compare: Hayes, pursuant Southern District California 1979). Subsequently, to Rule 3 Fed.R.Cr.P. case, each an Information was filed In the instant cases there no stand- for States District Court the South- rule, ing order or special pursuant order ern ap- District of charging California each 3401(a) specially to 18 U.S.C. designating pellant with an act of a magistrate jurisdiction to exercise the pursuant to 18 U.S.C. delinquency cases. In the Gonzalez-Cervantes re- The seminal issue involved is whether the spondent filed a consent Congress when enacted it and amended the magistrate magistrate but a spe- was never Supreme Act and the Court designated. cially In the Doe case a con- adopted Magis- when it and amended the sent to trial before was filed grant trates Rules of Procedure intended to point judge and at one designat- litigants to insist proceed- matter, ed a to hear the but the ings be held rather judge subsequently on motion of judge. put than a district another To it government vacated the order and reas- way, does have jurisdiction. sumed All these actions were judge which a district does not have? proper 3401(f). This is not an occasion —a case three The district may pro- order that concurring opinions complete —for ceedings misdemeanor be con- thorough discussion issues. Suffice ducted before a district rather than say, court, my opinion that in there is one magistrate upon a United States the district There court. is no or, good court’s own motion cause Congress has identified officials who shown, upon petition by attorney granted special have been authority, under the Government.... circumstances, perform judicial functions respect perceive With to these issues I Nevertheless, of the district court. the en difference between adult misdemeanor tire of the district vest cases, delinquency cases and ed in the district anything *7 justification deciding thus no on the is, magistrate does under the statute and basis of a distinction. rules, control, subject supervision to the review judge. of a district
Raddatz, U.S. S.Ct.
L.Ed.2d 424
In passing the 1976 to the amendments Act,
Federal Congress was
alert concerning Art. Ill values
vesting decisionmaking power mag- Accordingly, Congress
istrates. made
clear that plenary
discretion magis- whether to authorize a evidentiary hearing
trate to hold an acts subsidiary